BRITT & BRITT

[2019] FamCA 982

FAMILY COURT OF AUSTRALIA

BRITT & BRITT [2019] FamCA 982

FAMILY LAW – PROPERTY – Where the wife seeks further adjustments to interests in property – Where the husband opposes any further adjustment and seeks costs – Where the parties lived together for no less than 30 years – Where the children of the marriage are now adults – Where the wife was a child at the beginning of cohabitation – Where the mother’s contributions are said to have been made more onerous by the alleged violent conduct of the husband – Where there are cross allegations of family violence – Where the parties’ relationship was increasingly violent – Where an adjustment pursuant to Kennon & Kennon (1997) FLC 92-757 is not just in the circumstances – Where there was a long standing power imbalance of the husband over the wife – Where the wife suffered as a result – Where the husband retained the exclusive use of the former matrimonial home which produces income – Where the wife retained monies which have not generated any assets – Where both parties have re-partnered – Where the husband has two young children as a result – Where the wife receives disability support payments and has no capacity for work – Where the husband continues to do farm work – Where the husband’s age moderates the adjustment to the wife in respect of income disparity – Where neither party has superannuation – Where the father has a financial resource by way of inheritance – Where the wife has limited financial resources – Where adjustment factors pursuant to s 79(4) of the Family Law Act 1975 (Cth) favour the husband – Where adjustment factors pursuant to s 75(2) of the Family Law Act 1975 (Cth) favour the wife – Where in the circumstances it is just and equitable to make an adjustment to interests in property.

FAMILY LAW – PROPERTY – Procedural – Where final orders were made in the Federal Circuit Court in 2015 in favour of the husband – Where the wife successfully appealed to the Full Court of the Family Court of Australia against the orders in 2017 – Where the matter was transferred to this Court.

Family Law Act 1975 (Cth) ss 75(2), 79(4)
Family Law Rules 2004 (Cth) r 17.03

Bevan & Bevan [2013] FamCAFC 116

Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Ms Britt

RESPONDENT: Mr Britt

FILE NUMBER: SYC 3351 of 2012

DATE DELIVERED: 19 December 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 21 - 22 May and 27 - 31 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lodgson

SOLICITOR FOR THE APPLICANT: Sorensen and Brown Solicitors

COUNSEL FOR THE RESPONDENT: Mr Curtis

SOLICITOR FOR THE RESPONDENT: Birtles Legal

Orders

1. That all real and personal property, chattels, motor vehicles, including any interest in a superannuation fund or scheme or financial institution, shares, investments, money, either retained by the Respondent husband when the parties separated or subsequently acquired by or transferred to him be declared the sole property of the Respondent husband.

2. That all real and personal property, chattels, motor vehicles, including any interest in a superannuation fund or scheme or financial institution, shares, investments, money, either retained by the Applicant wife when the parties separated or subsequently acquired by or transferred to her be declared the sole property of the Applicant wife.

3. That unless otherwise specified in these orders, the husband, his heirs, successors and assigns indemnify the wife and keep her indemnified in respect of all actions, suits, claims or demands in relation to:

   (a)Any other liability standing in his name;

   (b)Any liability encumbering any item of property to which he is entitled pursuant to these orders.

4. That unless otherwise specified in these orders, the wife, her heirs, successors and assigns indemnify the husband and keep him indemnified in respect of all actions, suits, claims or demands in relation to:

   (a)Any other liability standing in her name;

   (b)Any liability encumbering any item of property to which she is entitled pursuant to these orders.

5. That the husband pay to the wife the sum of $421,013 within 60 days of the date of these orders.

6. That any amount due under this order shall, as from 60 days from the date of this order, bear interest at the rate of 8.5% per annum pursuant to Rule 17.03 of the Family Law Rules 2004 (Cth) from that date to the date of repayment of the said sum in full.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Britt & Britt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 3351 of 2012

Ms Britt

Applicant

And

Mr Britt

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Britt (“the wife”) aged 53 years, for further adjustment of interests in matrimonial assets.

2. The respondent Mr Britt (“the husband”) aged 69 years at trial, resists any further adjustment and seeks costs.

3. The parties began living together in 1980 on the husband’s rural property ‘Property L’. The wife was aged 14 years and in her second year of high school. The husband was a divorced man of 31. He had two children from his first marriage.

4. The alleged criminality of the association of the husband with the wife as a child then, and in the three years before the wife moved to live with him, was reported by no-one to relevant authorities. That disparity, in age and agency, is the key in my view to the anger, rising at times to rage, displayed by the wife during cross-examination, to the estrangement of the wife from her adult children and to the prolonged litigation.

5. The parties married in 1988 shortly before the birth of their third child. At that point they had been living together for about eight years.

6. The parties lived together for more than 30 years in total, until final separation in November 2011. They were divorced in 2013.

7. There are four adult children of the marriage, all but one aged in their thirties. Three of those children filed affidavits in support of the husband.

The Parties

The Applicant Wife

1. The wife lives with her de facto partner of seven years, Mr L, in a house now owned by her at C Town, a town north of City G. The property was owned by Mr L until his Trustee in Bankruptcy sold it to the wife.

2. Mr L is 72 years old and is a retired tradesman, now on the age pension.

3. The wife describes herself as suffering from the symptoms of depression, for which she has been prescribed and taken medication. There was no medical evidence on that topic.

4. The wife is in receipt of the disability support pension, due to lower back pain and sciatica. She had discectomy surgery in 2016 and has ongoing treatment.[1]

   [1] Affidavit of Dr A filed 24/04/2019, Exhibit B

The Respondent Husband

1. The husband is currently aged 69 years. He lives and works on the family farm ‘Property A1’ in Town Q (75 kilometres west of City N NSW) with his de facto partner Ms K, aged 42 years. Ms K has known the parties since she was a child of seven years.

2. The relationship between the husband and Ms K began in 2012.

3. Ms K suffers the mental health condition bi-polar disorder and the medical condition of epilepsy.

4. The husband and Ms K have two pre-school aged children who live with them on Property A1.

The Applications

1. The wife seeks a payment to her which would effect a division of current assets in a ratio of 65 percent to herself and 35 percent to the husband; with the former matrimonial home property ‘Property A1’ to be sold if necessary to meet the payment. The sum required was not quantified. To achieve 65 percent of the asset pool, excluding the inheritance of the husband, would require a further payment of approximately $870,000.

2. The husband effectively seeks dismissal of the application of the wife.

3. Both positions are in my view unrealistic.

History of Litigation

1. The parties have been involved in recurrent litigation over property for the past seven years.

First Proceedings – Federal Magistrates Court of Australia

1. On 8 June 2012 the wife filed an Initiating Application in the Federal Circuit Court (then known as the Federal Magistrates Court) in Sydney, seeking property orders. The husband filed a timely response.

2. On 25 July 2012 the matter was transferred to the Newcastle Registry.

3. On 7 September 2012 a Federal Magistrate directed the parties to attend a mediation.

4. Consent Orders were also made that enabled the husband to continue to operate the partnership known as Mr Britt and Ms Britt, with the proceeds of the farming to be used to pay the expenses and with the net proceeds to be distributed equally.[2]

   [2] Federal Magistrates Court of Australia Orders dated 7/09/2012

5. On 14 December 2012 further orders were made relating to the management of the farm, preparation of valuations and directions for a final hearing.

6. On 25 June 2013 the trial dates in the by then Federal Circuit Court (“FCC”) were vacated, and the matter was adjourned until September 2013.

7. On 25 September 2013 further orders were made setting the matter down for trial in March 2014.[3] Orders were made for a number of valuations to take place in preparation for the final hearing.

   [3] Federal Magistrates Court of Australia Orders dated 25/09/2013

8. On 10 – 13 March 2014 a trial was commenced and adjourned part-heard to August 2014.

9. On 29 August 2014 the trial concluded with judgment reserved.

10. On 30 March 2015 final orders were made. The orders provided for the husband to pay the wife $597,875.74, the wife to transfer to the husband her rights and interests in Property A1, with mechanisms for the property to be sold if the husband could not pay the settlement sum to the wife.

11. The trial judge determined that the total asset pool of the parties was $2,207,510.[4]

    [4]Britt & Britt [2015] FCCA 685, 54

12. On 30 March 2015 the husband paid the wife $597,875.74 pursuant to orders.[5] In order to pay the wife this money the husband borrowed $600,000 which was secured by a mortgage over Property A1 and Property A2 (together known as Property A1). He has paid back some of the principal, in part from income and savings and later from his inheritance. At the date of trial he owed $277,732 on this amount. He has paid interest, approximately $100,000 to date of trial, and continues to do so.[6]

    [5] Affidavit of Mr Britt filed 4/04/2019, para 146

    [6] Affidavit of Mr Britt filed 4/04/2019, paras 147 and 148

Appeal by Wife

1. On 27 April 2015[7] the wife filed an appeal against the orders.

   [7] Notice of Appeal of Ms Britt filed 27/04/2017

2. On 27 April 2016 the appeal was heard by the Full Court of the Family Court of Australia (“the Full Court”) with judgment reserved.

3. On 27 February 2017 the Full Court upheld the appeal and made orders that the matter be remitted for a re-hearing in the FCC.

Mediation

1. On 4 April 2017 a judge of the FCC ordered that the parties attend a privately funded mediation.

2. In late 2017 the parties entered into a private mediation without resolution.

Transfer to the Family Court of Australia

1. On 22 December 2017 the matter was transferred from the FCC to this Court for trial.

2. In March 2018 Probate was granted for the estate of the husband’s late mother who had died in the previous year.

3. In May 2018 procedural orders were made for a number of valuations to take place. The matter was adjourned to allow the wife to undertake the necessary investigations in relation to the quantum of the husband’s inheritance from his late mother’s estate. The wife demonstrated to the Court that she intended to argue that the husband’s inheritance was a financial resource of significance.

4. By 6 August 2018 the parties indicated that they were ready to receive a trial date.

5. On 13 August 2018 the husband filed an Application in a Case seeking that the wife provide all available information about the Motor Vehicle 1 that was reported stolen to the NSW Police in 1999.

6. On 21 September 2018 the husband’s Application in a Case was dismissed. He was ordered to pay the wife’s costs of that application on a party/party basis in the sum agreed or assessed. The proceedings remained listed for allocation of a trial date.

7. On 9 November 2018 the matter was listed for a seven day trial in May of the following year.

The Trial

1. The trial was conducted over seven days in May 2019.

2. Both parties were legally represented and had briefed counsel.

3. A good deal of the evidence was irrelevant to the issues to be determined. Cross- examination was driven by not just animosity between the parties but a desire by both to be vindicated. This intense focus on historical matters, which evidently  involved great emotional pain and anger for the parties and the two adult sons who gave evidence, had the effect of obscuring relevant information.

4. I came to the conclusion that both parties were untruthful on many points and simply did not care.

5. The matter was concluded within the allocated time.

6. Judgment was thereafter reserved.

History of Relevant Events 

1. In 1973 the husband and his brother Mr F purchased a rural property for $47,000. The Property L is a 770 acre property, agreed by the parties to be poor country, at Town OO south west of Town S. It held 78 head of cattle and some sheep.

2. The husband states he contributed $20,000. Despite the unequal contributions the property was apparently held in equal shares.

3. At the time of purchase the husband was living with his first wife and their two children in City N. He operated a small business in that city, Business T.

4. The wife asserts that she, as a girl, together with a friend had work riding horses for a local man and they often passed the husband’s horses stabled at his business in City N. The wife talked to the husband about the horses.

5. In 1976 the marriage between the husband and his first wife was dissolved.

6. In about 1977, the husband closed down his business and moved to live at Property L on a full-time basis.

7. The husband does not dispute that he then started taking the wife, then aged about 11 years, to Property L on weekends. The wife would meet with the husband after school on Friday and they would spend the weekend at the farm together. The husband’s father and brother came to the farm to work as well on the weekend, and either the husband or the paternal grandfather would drop her back at City N at the end of the weekend.

8. The evidence of the husband was to the effect that he was helping her, providing respite from an indifferent family.

9. The evidence of the wife is that the husband had “a sexual relationship” with her from that age. The wife referred to sexual relations between the parties as non-consensual for her part. Consent by a child of her age was of course an irrelevant matter, even if she had believed she was agreeing to what the husband wanted from her.

10. Given that the wife was pregnant at fifteen years with the parties’ first child I am more inclined to accept the evidence of the wife.

Cohabitation at Property L

1. In either 1980 or 1981 the wife began living full time with the husband at the Property L. She was in Year 8 of her secondary education. Upon moving to the property, her attendance at school became sporadic and then ceased.

2. The homestead on the property was in very poor condition and the parties had little money. The husband’s brother controlled the income from the farm and paid all the expenses.

3. Everything the parties had, including the property they lived on and the animals that were raised there, was contributed by the husband.

4. When the wife began living at the property, a man named Mr U, was living at the property. The wife asserted that he taught her how to cook, and thereafter she did most of the cooking and preparation of meals, as well as the cleaning and washing.

5. The husband asserted that Mr U would cook most of the meals and did all the cleaning, and that he lived with the parties for about six or seven years.

6. The truth of the story is probably a combination of those two versions. What is clear is that the husband did very little domestic work.

7. By the second half of 1981 the wife was pregnant. She was granted a Supporting Parent Benefit. Perhaps both parties understood the fraudulent character of that application, but the husband must bear responsibility for it. I accept that the husband told the wife that she needed to continue to get the pension to support herself and the child. Both parties benefited from its receipt.

8. The child Mr D was born in 1982. The husband dropped the wife off at the hospital for the birth but did not go in. He declined to have his name on the birth certificate. I infer that the husband wished to avoid recriminations based on the age of the wife and also to continue receiving Commonwealth benefits.

9. In the early years the wife led a solitary life. The parties only had one car and the husband would often take the car and telephone and leave the wife alone at the property. She stated this would occur for two to three days at a time and once she had to drive a tractor into the local town so she could buy some supplies.

10. There is no dispute that the parties struggled financially as the property did not generate much income.

11. The husband was primarily responsible for the farming activities, however on his evidence the wife assisted when he required her to, for example when mustering cattle and general farming duties.

12. In 1984 the husband’s brother Mr F died. The husband purchased his brother’s share of the property for $50,000, paying in instalments over the following years. The husband became the sole registered proprietor of Property L.

13. In 1986, the parties’ second child Mr X was born. The wife states the husband again dropped her off at the hospital. He again declined to put his name on the birth certificate. As a result the wife continued to receive the Supporting Parent Benefit.[8]

    [8] Affidavit of Ms Britt filed 5/04/2019, para 8

14. Following the birth of that child, the wife began an enduring pattern of taking paid work in town. She worked at a local restaurant for two to three years and at a trade show in Town S. She also worked at two local businesses.

15. This work was undertaken in addition to household, parenting and farm duties.[9] The husband claimed that he was aware that the wife worked but never knew how much she was paid or what she did with this income. He denied receiving any of that money.[10]

    [9] Affidavit of Ms Britt filed 5/04/2019, para 27

    [10] Affidavit of Mr Britt filed 4/04/2019, para 22

16. At least some of the money was used to play poker machines.[11] This gambling later became a costly habit which saw the wife lose the benefit of her own hard work as a customer service officer.

    [11] Affidavit of Ms Britt filed 5/04/2019, para 82

Marriage

1. In 1988 the parties were married.

2. In 1989, the parties’ third child Mr Y was born. The husband agreed for his name to be placed on the birth certificate.

3. In 1991 the parties’ fourth and last child Ms E was born. The  husband agreed for his name to be on the birth certificate. Around this time the parties instructed a solicitor to rectify the birth certificates of the two elder children.[12]

   [12] Affidavit of Ms Britt filed 5/04/2019, para 9

4. In 1995 the homestead on Property L was extensively damaged by a storm. This resulted in the insurance company paying for repairs that provided for a substantial renovation of one side of the house, making the house more comfortable and liveable.

5. The wife alleges that over the years, before and after the storm, she made improvements to the house by painting and decorating it, such as doing up the bathroom, installing air conditioning, better floor coverings, replacing doors, replacing broken windows and electrical repairs. She did most of the work herself but hired a carpenter or tiler when needed. She established and maintained a lawn and helped build a farm shed.[13]

   [13] Affidavit of Ms Britt filed 5/04/2019, para 12

Wife’s gambling

1. The husband alleges and the wife concedes that she was a gambler and played  poker machines and card machines frequently. With no certainty as to amounts the husband asserted that the wife lost a considerable amount of family money through gambling.

2. That this was a constant source of argument throughout the relationship as asserted by the husband is highly likely. The husband alleges that one time, $10,000 was deposited into his bank account from a wheat cheque and two days later the wife informed the husband that she had gambled all the money away.[14]

   [14] Affidavit of Mr Britt filed 4/04/2019, paras 84 and 87

3. In her own estimation it was in 1997 that gambling on poker machines developed for the wife from a form of escape, to being a habit. She estimates that she lost $100 per session and gambled about 20 times per year, sometimes weekly and then other times once a month. The source of funds for her gambling was her own wages and social security payments for the children. The wife states she spent her winnings on the children, on one occasion a small car to drive to the bus stop.[15] However her losses, must also inevitably have impacted the children.

   [15] Affidavit of Ms Britt filed 5/04/2019, para 82

4. The wife states she ceased gambling in 2005.[16] It is uncertain.

   [16] Affidavit of Ms Britt filed 5/04/2019, para 82

Husband’s drinking

1. The husband concedes heavy drinking and going into town to drink. The wife resented his drinking and his absences. The parties clashed over it and it is probable that on some occasions the husband assaulted the wife whilst intoxicated. The husband denied doing so. The wife said she would tell him what he had done to her and he would not, or could not, recall events.

Report of a car as stolen

1. The parties’ eldest child Mr D gave evidence of an incident in 1998 when he was 16 years old. He had his learner’s permit and drove to City G in a family car with his mother to attend a doctor’s appointment. Mr D alleges that the wife reported the car as stolen while in City G.

2. The husband also referred to this incident. He said that when the wife returned home from City G she informed him that she had reported the car as stolen, as she thought they needed the insurance money. The husband recalled “a big fight.” He feared police involvement.

3. The husband took the car out to a place on the property, threw a tarp over it, and left it there for a few weeks.

4. Neither party withdrew the claim. When questioned, the wife was unable to recall much about the incident, including whether an insurance claim had been made, except that she had reported the car as stolen and “I didn’t get any proceeds.”

5. The husband acknowledged that he participated in a potentially criminal act with the wife by helping conceal the motor vehicle.[17]

   [17] Affidavit of Mr Britt filed 13/08/2018, paras 1-23

6. It is another example of dishonesty by both parties with an intention to receive a benefit, whether or not they did.

National Heritage Trust

1. In 2006, the parties received the sum of $16,061.50 from the National Heritage Trust to plant out a tree corridor across Property L for the preservation of wildlife. This money was put in a separate bank account in the husband’s name, with a cheque book attached. The parties used the money for purposes other than that intended by the grant. Both signed cheques.[18]

   [18] Affidavit of Ms Britt filed 5/04/2019, para 87

2. The husband focused on the fact that the wife did all the paperwork to obtain the grant but he was complicit.

3. The parties were later compelled to pay the money back to the National Heritage Trust.[19]

   [19] Affidavit of Mr Britt filed 4/04/2019, para 83

Australian Tax Office Fine

1. During 2006/2007 the parties paid $100,000 plus in fines imposed by the Australian Tax Office (“the ATO”).

2. The wife  always did the book-keeping for the property. When she was preparing the 2006/2007 BAS statement, she overstated the GST.

3. The wife asserted that she did this under pressure from the husband, and he told her what figures to put on the form. She feared physical abuse if she did not.

4. The husband blamed the wife and denied any prior knowledge of her actions. The husband had to attend City G Tax Office to be interviewed at which time, he says, he became aware that the wife had submitted 24 fraudulent and false business activity statements to the ATO.

5. This resulted in the parties having to pay the original taxes with a penalty and interest, the final amount due to the ATO, including the penalties was $200,000. The wife rang the ATO and applied for leniency, this amount was then reduced to $100,000. The parties borrowed this money from the husband’s mother, which was later paid back to her along with $6,000 interest.[20]

   [20] Affidavit of Ms Britt filed 5/04/2019, para 89

6. Whoever was responsible both parties benefitted financially and subsequently suffered the consequences.

Sale of Property L and purchase of Property A1 and Property A2

1. In 2009 the husband sold Property L for $3,405,000 to V Pty Ltd after the property was identified as being on a valuable coal deposit. The price paid was in the order of ten times more than the value of the property as a farm.[21]

   [21] Affidavit of Ms Britt filed 5/04/2019, para 38; Affidavit of Mr Britt filed 04/04/2019, para 91

2. In 2009, the parties applied most of the proceeds of sale to the purchase of Property A1 and Property A2, two pieces of property collectively known as Property A1 for $1,140,000 and $760,000, the purchase price totalling $1,900,000.

3. The property comprises 520 hectares, situated on highly productive level country, consisting of more than 1000 acres suitable for farming operations including breeding, fattening stock and cropping.[22]

   [22] Affidavit of Ms Britt filed 5/04/2019, para 38

4. When the parties purchased Property A1 they also purchased hay, plant and equipment, and furnishings for the main house for a total of approximately $90,000.

5. It is an agreed fact that the Property A1 is much more productive and is capable of producing a much higher income than Property L.[23]

   [23] Affidavit of Ms Britt filed 5/04/2019, para 39

6. ‘Property A1’ was run through a partnership set up as Mr and Ms Britt.[24] The wife continued to maintain and keep all of the books and records of the farming business including stock control records, stockyard records and receipts and payments. The wife did all the banking.[25] The wife purchased a mob of cattle which she regarded as her own personal asset.[26]

   [24] Affidavit of Ms Britt filed 5/04/2019, para 76

   [25] Affidavit of Ms Britt filed 5/04/2019, paras 78 and 79

   [26] Affidavit of Ms Britt filed 8/06/2012, para 38

7. In 2009 the parties took possession of Property A1.[27]

   [27] Affidavit of Ms Britt filed 5/04/2019, para 40

8. After the property was purchased the balance of the proceeds of the Property L sale were put into the husband’s personal bank account. From that account the sum of $100,000 with interest of $6000, was repaid to the paternal grandmother.

9. Improvements were also done to the property, $60,000 was advanced to a neighbour and $550,000 was invested with the stock and station agent Mr BB.[28] The husband states that it was $400,000 that was put into an account with the stock agent Mr BB.[29]

   [28] Affidavit of Ms Britt filed 5/04/2019, para 41

   [29] Affidavit of Mr Britt filed 4/04/2019, para 94

10. In late 2009 the party’s former neighbour at the Property L, Mr JJ, was in financial difficulty due to the drought. Mr JJ had assisted the parties significantly over the years, through unpaid labour and agistment of cattle. The parties purchased him a mob of sheep and a tractor as a gift.[30]

    [30] Affidavit of Ms Britt filed 5/04/2019, paras 42 and 43

11. Around the same time, Ms Z and Mr Z bought the Town AA business and the parties became friendly with them.[31] In May 2011, either the wife alone or the parties together lent a sum of $30,000 plus to Mr Z. It is an agreed fact that the money was not repaid.[32]

    [31] Affidavit of Ms Britt filed 5/04/2019, para 44

    [32] Affidavit of Ms Britt filed 5/04/2019, para 44

12. Around $500,000 remains unaccounted from the proceeds of sale of Property L.

13. In 2010 or October 2011 the parties received a tax refund of $34,461.76. The wife and the two younger children had a holiday overseas. The husband and the two older sons did not go because of work commitments.[33]

    [33] Affidavit of Ms Britt filed 5/04/2019, para 114

Final Separation

1. On 13 November 2011, the parties separated on a final basis. The incident which gave rise to separation was not unusual for the parties but was the last one.

2. Due to the husband leaving the gate to the yard around the house open, cattle  entered the yard and trampled the wife’s garden. The husband went inside the house. The wife started driving a quad bike to get the cattle out. The wife alleges and the husband denies that the husband came out of the house, grabbed her by the shirt, pulled her off the bike and raised his fist above his head. The wife states she then struggled free, went inside, grabbed her purse and clothes and left in the Motor Vehicle 2.[34]

   [34] Affidavit of Ms Britt filed 5/04/2019, para 64

Events after Separation

1. The husband stayed on the property and continued to farm. The wife moved into the Town AA business, where she stayed for two months.[35]

   [35] Affidavit of Ms Britt filed 5/04/2019, para 105

2. The wife continued to receive funds from the farming partnership, as did the husband.[36]

   [36] Affidavit of Mr Britt filed 4/04/2019, para 132

3. On 20 November 2011 the wife withdrew $20,000 from the partnership account in order to meet her living expenses.[37]

   [37] Affidavit of Ms Britt filed 8/06/2012, para 20

New relationship for Husband

1. In 2012 the husband began his relationship with his current wife Ms K. Ms K moved in with the husband in the homestead at Property A1.

2. Around this time the wife called the husband and asked for $485,000 invested with the stock and station agent, in order to purchase a home for herself at C Town.[38]

   [38] Affidavit of Ms Britt filed 8/06/2012, para 25

Fraudulent Letter

1. In January 2012, the husband received a letter informing him that he was not to transfer stock. The letter had the acronym “MLA” on top of it. The husband believed that it was official correspondence from the Meat Livestock Australia Authority. As a result of receiving the letter the husband stopped selling cattle for a period of 18 months, although he would otherwise have sold the cattle due to the drought. When he did sell them the price had dropped and he had spent $20,000 on hay.

2. The solicitor for the husband advised him that the letter was a forgery. The husband suspected that the wife was responsible for sending that letter.[39]

   [39] Affidavit of Mr Britt filed 4/04/2019, paras 185 and 186

3. The wife denies sending the letter.[40] Whether or not she did the disadvantage flowed to them both.

   [40] Affidavit of Ms Britt filed 5/04/2019, para 93

4. On 16 January 2012 the parties sold some cattle and split the profits equally or very close to it.

Assault on Mr Y

1. On 27 January 2012 the wife went to Property A1 to collect some personal items. The wife took three male friends with her.

2. An altercation between herself and one of the parties’ sons, Mr Y, ensued. The wife was charged with assaulting Mr Y.[41]

   [41] Affidavit of Ms Britt filed 8/06/2012, para 22; Affidavit of Ms Britt filed 05/04/2019 para 69; Affidavit of Mr Britt filed 4/04/2019, para 159; Affidavit of Mr Y filed 03/04/2019, paras 129–151

3. An Apprehended Domestic Violence Order (“ADVO”) was made that prevented the wife from attending Property A1.[42]

   [42] Affidavit of Mr Britt filed 4/04/2019, paras 160 and 161

New relationship for Wife

1. In 2012 the wife states she commenced a relationship with Mr L.[43]

   [43] Affidavit of Ms Britt filed 05/04/2019, para 75

2. In February 2012 the wife received the sum of $60,000 for the deposit on the C Town property from joint funds.[44]

   [44] Affidavit of Ms Britt filed 08/06/2012, para 20

3. On 6 March 2012 the wife pleaded guilty to assaulting Mr Y at Town S Court.[45] An ADVO was made in favour of Mr Y for one year.[46]

   [45] Affidavit of Ms Britt filed 08/06/2012, para 22

   [46] Affidavit of Ms Britt filed 05/04/2019, para 69

Breach of ADVO

1. Following the Court event on 6 March 2012, the wife went back to Property A1 in order to attempt to recover more possessions.

2. The wife states she was attempting to take her trailer, which was attached to the car of Ms K at the time, and in doing so, the wife exchanged words with the husband and drove through a garden bed damaging some plants.

3. The husband alleges that the wife tried to run over both himself and his partner. That she drove over the gardens and lawn destroying it and damaging some small trees. That the wife assaulted him by pushing him against the front door and broke into the house, stealing property, ripping down curtains and stealing photographs. The stock and station agent was present when this occurred.[47]

   [47] Affidavit of Mr Britt filed 04/04/2019, paras 162 – 167

4. The police were called however the wife left before they arrived.

5. The wife was charged with breaching the provisional ADVO put in place in the protection of the husband (arising from events on 27 January 2012). The wife was charged with stealing property belonging to the husband and his partner .[48]

   [48] Affidavit of Ms Britt filed 08/06/2012, para 23

6. In 2012 the wife cancelled the farm insurance on Property A1 and received the refund cheque of $3,631. The property remained uninsured for a period of time without the knowledge of the husband. On her own evidence the motivation of the wife was frustration and anger at the way the husband was treating her.[49]

   [49] Affidavit of Ms Britt filed 05/04/2019, para 112

7. Sometime after separation when the family health insurance policy expired, the wife did not maintain the husband’s health insurance but took out her own. The husband was not told.

8. In 2012 the wife was sentenced in relation to the assault on Mr Y at Town R Local Court, the wife states she was placed on a good behaviour bond for one year.[50]

   [50] Affidavit of Ms Britt filed 08/06/2012, para 22

9. In May 2012 the husband alleges that the wife received $400,000 from funds invested with Mr BB, the stock and station agent.[51] However it happened, there was a distribution from invested funds to the wife which she later applied to the purchase of the property at C Town.

   [51] Affidavit of Mr Britt filed 04/04/2019, para 138

10. On 15 May 2012 the husband states he received $24,905.87 from Mr BB and that this was a final distribution of funds from the investment account held by Mr BB.[52] Effectively that was the last of the proceeds of sale of Property L.

    [52] Affidavit of Mr Britt filed 04/04/2019, para 149

C Town

1. On 29 May 2012 the wife completed the purchase of the C Town property and thereafter spent $127,222.37 on renovating and furnishing the property, which was in very poor condition when she purchased it.[53]

   [53] Affidavit of Ms Britt filed 05/04/2019, paras 67 and 68

Protective Orders

1. On 5 June 2012 a final ADVO was made listing the husband and his partner as the Persons In Need of Protection (‘PINOP’) and the wife as the defendant. The husband alleges that the wife continued to contact and ring the house leaving a number of voicemail messages.[54]

   [54] Affidavit of Mr Britt filed 04/04/2019, para 169

2. On 1 August 2012 Ms K consented to an interim AVO being made listing the wife as the PINOP. This AVO was withdrawn on 6 March 2013.

3. On 6 August 2012 the wife was found guilty of breaching the ADVO that listed the husband as the PINOP.

4. On 6 August 2012 a final AVO was put in place for a period of twelve months listing Ms K as the PINOP and the wife as the defendant. A second AVO was put in place on an interim basis, listing the wife as the PINOP and Ms K as the defendant.

5. The wife was convicted of intimidating Ms K, contravening the ADVO in protection of the husband and damaging the garden bed. In each matter the offence was proved but no conviction recorded. The wife states she was put on a 12 month good behaviour bond in relation to the Ms K matters, and acquitted of the theft charges.[55]

   [55] Affidavit of Ms Britt filed 05/04/2019, para 71

6. The wife alleges that during this time the husband incurred debts that were not approved and then sought reimbursement. She disputes the fact that he states some of the expenses were legitimate farm expenses. In regards to the expense of diesel fuel, the wife states that she believes a larger amount than usual was expended by the husband on his personal endeavours or by Ms K.[56]

   [56] Affidavit of Ms Britt filed 05/04/2019, paras 101-104

Cattle Sales

1. Both parties continued to receive funds from the sale of cattle. There were endless disputes on that topic and whether or not the debts incurred by the husband were for legitimate farm expenses. Those disputes need not be resolved.

Medical treatment for Wife

1. In August 2015 the wife began consulting Dr A, an orthopaedic and spinal surgeon, for lower back pain and sciatica.

2. In 2016 the wife had surgery on her back, a discectomy.

3. The wife has continued to consult Dr A in respect of back pain and neck and shoulder pain.

Death of Husband’s Mother 

1. In 2017 the husband’s mother Ms C died. She left a will dividing her estate equally between her two children, namely the husband and his sister.

2. In January 2018 the wife borrowed $50,000 from the ANZ bank. She deposited $8,000 into Ms E’s bank account to help her with her medical expenses. The balance was used for roof repairs and rectification to the C Town property. The ANZ bank has taken a lien over the house at C Town to secure the loan.[57]

   [57] Affidavit of Ms Britt filed 5/04/2019, para 129

Probate and Inheritance

1. In 2018 Probate was granted over the estate of the husband’s late mother.

2. The husband states that in 2019 he received his final distribution of $750,118.14 from the estate of his late mother, bringing his total net inheritance to $867,464. [58]

   [58] Affidavit of Mr Britt filed 4/04/2019, para 154

The Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Wife - Ms Britt

   (a)Amended Initiating Application filed 6/05/2019;

   (b)Affidavit of wife filed 5/04/2019;

   (c)Financial Statement of wife filed 5/04/2019;

   (d)Affidavit of Mr DD - wife’s brother filed 5/04/2019;

   (e)Affidavit of Mr EE filed 05/04/2019;

   (f)Affidavit of Dr A - wife’s treating specialist filed 24/04/2019;

   (g)Affidavit of Mr L filed in Court May 2019

   (h)Affidavit of Mr FF (deceased) filed 14/06/2013;

   (i)Affidavit of Mr GG (deceased) sworn 14/06/2013;

   The Respondent Husband - Mr Britt

   (j)Amended Response filed 5/02/2019;

   (k)Affidavit of husband filed 4/04/2019;

   (l)Financial Statement of husband filed 4/04/2019;

   (m)Affidavit of Ms K - husband’s partner filed 4/04/2019;

   (n)Affidavit of Mr Y - son of parties filed 3/04/2019;

   (o)Affidavit of Mr D - son of parties filed 3/04/2019;

   (p)Affidavit of Ms HH - friend of parties filed 3/04/2019;

   (q)Affidavit of Ms CC - former sister-in-law of wife filed 12/09/2017;

   (r)Affidavit of Ms E – daughter of parties filed 2/05/2019.

Approach to alteration of interests in property

1. Consideration of an application for property settlement should always begin with identification of the existing property interests of the parties, both legal and equitable;[59]

   [59] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

2. Having identified the nature of the assets and the consequential value of the asset pool the Court must consider whether it would be just and equitable in the particular circumstances to make any alteration to how those interests are held.

3. If the Court concludes that there should be an adjustment the next step is to consider the matters contained in ss 79(4) as to contributions, and 75(2) with regard to adjustments for future needs, of the Family Law Act 1975 (Cth) (“the Act”).

1. Finally, the Court must consider whether the adjustment contemplated would be just and equitable in the circumstances.

2. If so, orders are made to effect the adjustment.

1. Identify the assets and liabilities of the parties

1. The parties’ assets at date of trial were set out in the joint balance sheet:[60]

   [60] Exhibit 3

O’ship			Description	Wife’s value	H’band value
ASSETS
1		H	Property A1	$1,205,000	$1,205,000
2		H	Property A2	$805,000	$805,000
3		W	J Street, C Town	$470,000	$470,000
4		W	Motor Vehicle 2	$15,300	$15,300
5		H	Livestock	$126,799	$126,799
6		W	Household Contents	$2,000	$2,000
7		H	Plant & Equipment	$43,835	$43,835
8		H	Motor Vehicle 3	$5,000	$5,000
9		H	Motor Vehicle 4	$11,300	$11,300
10		H	Household contents	$2,000	$2,000
11		H	Motor Vehicle 5	$6,000	$6,000
12
13
14
15
16
17
Total			$2,692,234	$2,692,234
ADDBACKS
18	W		Moneys paid to wife by husband by way of property settlement pursuant to orders made by Judge Terry. From this amount the wife has paid legal costs of some $350,000.	$597,875.74	$597,875.74
19	W		Funds withdrawn by wife from joint bank account after separation on 28.11.11 (the wife contends that this amount should not be added back but only taken if necessary having regard to s 75(2) factors).	$20,000
20
Total			$597,875.74	$617,875.74
LIABILITIES
21	H		Mortgage outstanding on Property A1 obtained to pay wife settlement	$277,732.39	$277,732.39
22	W		Mortgage on C Town (wife concedes that this is her liability solely incurred after separation and should not be deducted to determine the net asset pool available for division between the parties)	$50,000.00
23
Total			$277,732.39	$277,732.39
SUPERANNUATION
24	-		Nil	Nil
25
Total
FINANCIAL RESOURCES
26	H		Husband’s inheritance	$989,118.14	$989,118.14
27
Total			$989,118.14	$989,118.14

Notes

In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:

1.Why an item should not be on the balance sheet.

2.Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.

3.Whether documents in the possession of the other need to be provided before the value of an item can be agreed.

4.Any other comment a party wishes to make in relation to the disputed item.

Item
30 (sic)	Received post divorce.
9	Obtained post divorce.
26	Husband still has to receive a final distribution in his mother’s estate.
26	Amount received by husband in mother’s estate not reduced selling off of the husband’s loan from the estate.
26	Husband received total amount of $989,118.14 of which he repaid to the estate the sum of $121,654.40. With remaining funds the husband paid out one of the mortgage funds of $280,099.69. Part of remaining funds used for legal fees. As at 14 May 2019, the husband has $347,678.66 in savings.

END OF EXHIBIT 3

1. Analysis by the Court of the (Revised) Joint Balance Sheet:

Item
19	This was a fund withdrawn by the wife from joint bank account used for re-establishment and living expenses. On that basis it should be excluded from the pool.	Item 19 is omitted.
21	This item represents the mortgage secured on Property A1 for the funds raised by the husband to pay the wife the sum ordered in 2014 ($597,876). The debt has been reduced by a lump sum payment of $280,000 from inheritance and a further sum of $42,268 from farm income. This item accurately reflects the mortgage debt at date of trial.	Item 21 is confirmed
22	This item is a mortgage secured on the property of the wife at C Town. It is conceded to be a debt solely attributable to the wife.	Item 22 is omitted
26	This item is the full value of the inheritance received by the husband from the estate of his late mother in 2018. He repaid to the estate the sum of $121,118.14 leaving a total of $867,464 From those funds the following sums should be deducted: 1)     $280,100 applied to reduction of the mortgage on Property A1  (Item 21); He has also spent part of the fund on legal fees.	Item 26 should be revised to $587,364

1. Revised Asset Pool (excluding inheritance):

Assets
Items 1-11 inclusive	$2,692,234
Item 18	$597,876
$3,290,110
Liabilities
Item 21	$277,732
Net pool of assets	$3,012,378

How are those assets and liabilities presently held?

1. The wife has the following:

   Item 3              C Town  $470,000

   Item 4              Motor Vehicle 2         $15,300

   Item 6              Household  $2,000

   Item 18           Ordered payment     $597,876

   TOTAL (Wife)  $1,085,176

2. The husband has the following:

   Assets

   Items 1&2      Property A1          $2,010,000

   Item 5              Livestock                 $126,799

   Item 7              Plant & Equip            $43,835

   Item 8&9        Two Utes  $16,300

   Item 10           Household  $2,000

   Item 11            Motor Vehicle 5           $6,000

   Total  $2,204,934

   Less Liabilities

   Item 21           Mortgage                  $277,732

   TOTAL (Husband)  $1,927,202

   [Resources excluded]

   Item 26           Inheritance             $587,364

   GRAND TOTAL

   Wife  $1,085,176

   Husband   $1,927,202

   $3,012,378

3. Considering all interests of the parties in one pool, including the inheritance of the husband, the wife holds approximately 30 percent of net assets and the husband has 70 percent.

4. Considering all assets, excluding the balance of the inheritance of the husband, the wife would hold 36 percent and the husband would have 64 percent.

Legal Costs

1. Both parties have paid legal fees for one trial (in the FCC), an appeal, and this trial.

2. The total paid legal fees of the wife are said to be between $330,000-$350,000 including the costs of this trial at $105,760.[61]

   [61] Exhibit 10

3. The legal fees of the husband total $309,822 including the costs of this trial at $111,036. [62]

   [62] Exhibit 11

4. The fees of the parties being comparable I have excluded those amounts from consideration.

2. Would it be just and equitable to make an adjustment to interests in property?

1. In 2011 after separation the wife had $500,000 plus from invested funds which she used to buy her house and money to live on from cattle sales.

2. In 2015 the husband paid to the wife pursuant to orders of the FCC the sum of $597, 876. He borrowed $600,000 secured against Property A1 to do so.

3. The husband contends that after a transfer to the wife of $1.2 million approximately no further adjustment to the wife is necessary.

4. The wife asserts that the length of the marriage, 30 years plus, and her contributions throughout, justify a further substantial cash sum by way of adjustment. She also submits for an additional payment to address the impact family violence had on her ability to make contributions to assets.

5. The Full Court in its reasons for upholding the appeal of the wife directed a further consideration of that issue.

6. As a separate issue the husband has inherited almost $900,000 since the appeal.

7. A further adjustment of interests is just and equitable.

8. An examination of the history of contributions is therefore required.

3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment

Contributions under section 79(4)

Initial Contributions

1. In 1980 when the wife moved in to live with the husband she had no assets whatsoever. The husband owned the property they lived in, Property L, in equal shares with his brother. He had farm assets associated with the running of the property.

2. The property had been purchased in 1973 for $47,000.

3. After the death of his brother in 1984 the husband acquired his half share in Property L for $50,000.

4. Accordingly in 1980 when cohabitation began, the property had a value of between $47,000 and $100,000.

5. That property became the family home for the parties and the four children born between 1982 and 1991.

Analysis

1. The initial contribution of the husband must be given significant weight.

2. The wife, a homeless young person at the time of cohabitation, was not in a position to contribute any asset or income to the relationship.

Contributions during the marriage

1. The parties lived together for not less than 30 years.

2. The husband had provided the Property L they lived on, and which became a platform for a windfall profit when it was sold to a development company in 2009 for $3.4 million. Another property, Property A1, was purchased.

3. Property L was not an easy property to farm and generated modest returns, despite hard labour. Nevertheless it provided income for the support of the parties and children.

4. The wife provided most of the day to day care of the children who were all adults when the parties separated. The wife was a harsh disciplinarian at times but the husband was content for her to maintain that role.

5. The husband was not a dynamic farmer in the way the wife wanted him to be. The wife developed farming skills, undertook the book work and all business undertaken by telephone.

6. In considering these factors I give considerable weight to the contributions of the wife for her care of the children, her operation of the business side of the farm and her physical work with the cattle.

7. The wife became a reliable bookkeeper in terms of skills. The parties came to the adverse attention of the ATO either because the wife did not understand how to accurately reflect GST or did understand and deliberately overstated GST to obtain a benefit.

8. Likewise, a grant for tree planting was used for the parties’ expenses and not the proper purpose.

9. When the parties were not using accountants the burden fell on the wife. Whether or not the husband contributed to, or demanded, the various financial concealments and dishonesties practised by the wife both parties benefitted and both parties lived with the consequences in terms of fines and repayments for instance to the ATO.

10. The husband spent time and money on drinking. The wife worked away from the farm but developed an addiction to gambling.

11. The marital relationship was characterised by insult, threat and a dangerous mutual desire to provoke the other to anger.

12. Nevertheless they stayed together and got through their lives until their children were independent.

13. The contributions of both parties should be recognised over such a long marriage.

14. A ratio favouring the husband to acknowledge the enduring benefit of his initial contribution of the Property L as a home, a source of income and of a windfall sale price, in the order of a fifteen percent differential [57.5/42.5 percent in favour of the husband].

Contributions post separation

1. After separation the wife used joint funds, $500,000-$600,000, to obtain accommodation for herself and to renovate the property she chose to buy from her partner’s Trustee in Bankruptcy.

2. The husband remained living on Property A1 and has used it to provide a home and income for his current partner and their two children.

3. In 2015 as a result of an order of the judge of the FCC the husband borrowed from the bank to pay to the wife the sum of $597,876.

4. The wife accounted in her written and oral evidence for those funds being expended. The sum of $320,000 was paid out in costs of trial and appeal. The rest for expenses.

5. By consent that sum has been added back into the pool of assets as a nominal asset held by the wife. Accordingly, the position of the parties reverts to what it was after separation with one reservation. The husband has paid down the debt incurred to meet the payment by $300,000. He has paid interest. He used $280,000 from his inheritance to reduce the debt.

6. The husband has had the exclusive use of Property A1, the wife has had funds which have not generated assets.

7. An adjustment of 7.5 percent in favour of the husband is appropriate, to equate to a ratio of 65/35 percent in favour of the husband by date of trial.

Relevant factors under section 75(2)

1. The relevant matters to be taken into account are as follows.

The age and state of health of each of the parties

The Wife

1. The wife is aged 53 years. She is in reasonable general health but has pain and restriction resulting from back problems from Sciatica and has a caudal block administered as required, on average twice per year. This procedure costs $600 per block.

2. Her treating medical specialist Dr A provided his most recent opinion in April 2019:[63]

   Regarding work, I believe that she is not fit to return to the workforce because of her marked disabilities and the restrictions imposed on her. I believe that she will never lead a normal life.

   [63] Affidavit of Dr A filed 24/04/2019, Exhibit B

3. The evidence of the medical specialist that the wife had no capacity for work was not successfully challenged.

4. The wife has undertaken odd jobs where she can take breaks to rest. The wife is a resourceful and determined person. She will probably continue to do so to supplement her disability pension.

The Husband

1. The husband was aged 69 years at date of trial.

2. The only evidence about his state of health was this:

   I suffer physically from age related illness and I cannot work as hard as I once did. I need to take regular rest breaks whilst working on the farm.

3. I conclude that the husband is in reasonably good health and continues to do farm work with the assistance of his partner, sufficient to provide for himself and current family.

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

The Wife

1. The wife owns the property she lives in at C Town north of City G.

2. There is a mortgage on the property securing a debt of $50,000. The wife conceded, in the face of contrary evidence that the $50,000 was not given to the parties’ daughter, as the wife had asserted. It was probably used for roof repairs and personal expenses of the wife.

3. The income of the wife is the Disability Pension of $224 per week. She has some income on an occasional basis and no other resources.

4. The wife has also made some money from occasional work: by buying a car at auction and reselling it privately; by cleaning a property which had been a deceased estate; by doing some gardening at the local church school.

5. She has a restricted physical capacity to work and experiences symptoms she attributes to depression.

6. It is highly unlikely that the wife will re-enter the paid workforce.

7. The wife received the sum of $500,000 plus from the invested proceeds of sale of Property L in 2009.

8. After separation in November 2011 the wife left Property A1. She continued to receive income from cattle sales for three years in the sum of about $130,000. She withdrew funds from the partnership account and cancelled insurance which provided to her a further total sum of $23,631.

9. In 2012 the wife purchased the property at C Town for $330,000.

10. Accordingly, in the period of less than three years between the sale of Property L and the purchase of C Town property the wife had funds of $613,061.

11. Allowing for costs of purchase of the property and removal costs there is about $280,000 unaccounted for. Only the last six months of that period were post separation when the wife had separate living expenses.

12. The wife did not acquire any other assets.

13. In 2015 the wife received a payment of $597,875 pursuant to an order of the FCC.

14. From those funds she has paid $330,000 in legal costs and spent $157,000 repairing and renovating the C Town property.

15. Approximately $110,000 is unaccounted for other than as living expenses over the four year period since the first sum was received.

The Husband

1. The husband owns the farming properties he lives and works on. The two properties (A1 & A2) have a value of just over 2 million dollars.

2. He has the physical and mental capacity to continue running a farm but will be 70 this year.

3. The husband is not eligible for any Commonwealth benefit.

4. He discloses an estimated weekly income of $1,100.

5. The husband was the beneficiary of the estate of his late mother who died in 2017, six years after the parties separated. He inherited a total of $867,464. The husband used $280,000 from his inheritance to reduce debt incurred by borrowing to meet Court orders in 2015.

6. Accordingly he has a cash resource of $587,464.

7. The remainder of the inheritance is equivalent to 30 percent of the net asset pool so in relative terms delivers a significant benefit to the husband.

8. The fact of his age moderates the adjustment to the wife in respect of income disparity.

9. Accordingly, there should be a modest adjustment in favour of the wife on account of her impaired capacity for work.

Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain

The responsibilities of either party to support any other person

1. The husband has two children from his current relationship aged five and three years.

2. The husband’s partner is able to work on the farm but has restrictions arising from her mental health (bi-polar disorder) and physical health (epilepsy) on being able to leave the farm to work.

3. The husband will be 84 years when his younger child turns 18 years. There should be some adjustment in favour of the husband on account of his responsibility to support his children and to some extent his partner.

Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party

1. The wife has a disability pension. It is her main source of income.

2. Neither party has superannuation.

3. The husband has a fund for the future being the balance of his inheritance.

4. There should be an adjustment in favour of the wife on account of this financial resource in the hands of the husband.

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

1. The parties have now been separated for eight years. The wife was able to procure independent accommodation with funds received from the sale of Property L prior to separation.

2. She acquired the home in which her partner had been living and spent money renovating it to a reasonable standard of comfort.

3. The property was maliciously damaged by the adult son of the wife’s partner. Further funds were expended to repair the damage and restore the property.

4. There are funds which the wife has had unaccounted for by her current assets.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. This was a long marriage. This fact has relevance although the wife is not seeking maintenance.

2. The relationship between the parties started when the wife was a child. The circumstances of her family of origin meant that the wife had been homeless for two months when she moved to live with the husband.

3. By starting a relationship at such a very young age, on a rural property with the husband, the wife lost the opportunity to finish her secondary education and also the chance to grow up and become independent before forming an adult relationship.

4. She did not have the opportunity to obtain independent employment for many years and when she did it was customer service work.

5. The mother was a sexual partner for the husband when still physically and emotionally immature. She was pregnant with the parties’ first child at age 15 and had three more children in quick succession in her early twenties.

6. I conclude that the relationship between the parties did adversely affect the earning capacity of the wife in a most substantial way. All opportunities for economic and personal independence for the wife were extinguished by teenage child-bearing, parenting, record keeping and farm work.

1. The husband was independent, financially and in terms of his maturity, when the relationship began. He had his farm property, he had been married and divorced.

2. The earning capacity of the husband was not adversely impacted by the relationship. There was a benefit for him. The husband has difficulties with literacy. He relied on the wife for all operational business work, record keeping, banking and dealings with the parties’ accountant.

3. In referring to this aspect the husband through his counsel said “she did all the talking”. That was probably the case. The wife read all the letters and documents, made and received all the telephone calls, wrote up the books, and did almost all the banking.

4. This factor, the impact of the marriage on the earning capacity of the wife, is most significant. The endless incidents of cruelty, taunting, threat and physical violence throughout the marriage involving both parties as perpetrators and as victims and at least the two elder children as victims are a reflection of the frustration and powerlessness of the mother from the outset.

5. The husband denies violence. The wife describes being abused routinely and sometimes beaten:

   He would give me a backhander, grab me by the hair and pull me around and shout in my face saying things like: ‘You useless fucking slut. Get my fucking breakfast’.

6. Even if such abuse occurred once only, and not “50 times a year” as the wife alleges, it reveals the powerlessness of the wife, of having nowhere better or safer to go. The wife accepted her life the way it was.

If either party is cohabiting with another person - the financial circumstances relating to the cohabitation

The Wife

1. The wife is living with Mr L, her 71 year old partner of seven years standing.

2. Mr L, during the course of the trial, provided an affidavit in support of the wife.[64] He was cross-examined. The wife had provided very little information about him prior to trial in quite an obstinate way.

   [64] Affidavit of Mr L filed 27/05/2019

3. The information from the wife that she purchased the property in C Town (formerly owned by Mr L for 30 years) from the trustee of the bankrupt estate of Mr L was curious. His affidavit confirmed that he was not in a strong financial position. There was no information as to the level of debt owed to creditors. In cross-examination he denied receiving any money from the proceeds of sale. There was no documentary evidence of the bankruptcy and when it was discharged.

4. His present income is the old aged pension with some money from sale of second hand goods.

5. Mr L contributes by paying for food and alcohol and sharing household expenses.

The husband

1. The husband is living with his 43 year old partner Ms K, the mother of his two youngest children.

2. Ms K works on the property including the business side and cares for the two children of the marriage.

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

Violence

1. On behalf of the wife it was contended that the tasks of the wife which represent her contributions were made more onerous by the violent conduct of the husband.

2. In effect a Kennon & Kennon (1997) FLC 92-757 claim.

3. The husband describes the wife as “a very violent person prone to wild mood swings”.[65] He claimed that on numerous occasions she struck and attacked himself and the two older children and on at least one occasion shot at a child.

   [65] Affidavit of Mr Britt filed 4/04/2019, para 29

4. About the husband the wife claimed “Mr Britt punched me, hit me, dragged me by the hair, forced me onto the floor or pushed my face into the sink when it had water in it”. She alleged she was forced to have sex with him over her verbal objections.

5. The evidence suggests that there is truth and some exaggeration in all the very many assertions made by each party about the other.

6. A good example is what was referred to as the window breaking incident in 1990.

7. The husband gives the following version of events. Early one evening he could hear the wife yelling at the children. He then walked up to the kitchen door that was made of five glass panels and yelled out to the wife. The husband alleges that the wife threw a cup at him which smashed one of the glass panels. The husband then said to the wife “bet you can’t do that again arsehole”. This resulted in the wife picking up more cups and throwing them, resulting in her smashing all the glass panels in the door. The husband believes that one of the children then called the police and the wife took off. The police then arrived and searched the property for the wife. Shortly after they left, the wife came to the door stating she had spoken to the police and that everything was okay.[66]

   [66] Affidavit of Mr Britt filed 4/04/2019, paras 53 and 54

8. The wife gives a different version. She recalled an incident one morning when washing up. The husband arrived home drunk from the night before. While she was in the kitchen he came up to her, grabbed her by the head, pushed her head into the sink into the water and shook it, saying to her “you are a useless slut” and other derogatory comments. The wife stated she particularly resented being called a slut because that was the word the husband used on every occasion. After she was released by the husband and while he was walking out the door still yelling abuse she picked up a cup and threw it at him, smashing the glass. The wife alleges the husband continued to abuse her and egg her on as she threw more cups. She states she was not aware that the police attended the home.[67]

   [67] Affidavit of Ms Britt filed 5/04/2019, paras 122 and 123

9. The two versions although different in some factual respects, tell the same story. The wife was overburdened, unhappy and trapped. The husband showed no respect for her, provoked her deliberately, and assaulted her in certain moods.

10. The wife alleges that she was the victim of ongoing and extreme family violence of a similar nature throughout her entire relationship with the husband.[68]

    [68] Affidavit of Ms Britt filed 5/04/2019, paras 45-63

11. I accept that the relationship between the parties was ever increasingly violent, rage-filled and toxic. The parties insulted and assaulted each other very often.

12. Nevertheless there was a long standing power of imbalance. The husband owned the property. He was 16 years older than the wife. The wife had lived there since age 14 and had nowhere else to go and no one to go to. She probably did frighten the children and discipline them in a way which amounted to assault from time to time. She also loved them and did not want to separate from them.

13. The parties’ oldest son Mr D gave evidence. He described his parents in this way:[69]

    However whilst Mr Britt [the husband] was lazy and a drunk, he was not overly violent. I only recall on one occasion Mr Britt hitting Ms Britt [the wife] and that was with an open hand after they had argued, I have recollections of Ms Britt always baiting Mr Britt pushing until she got a reaction. They were always arguing almost daily. Mr Britt was a coward and he would just hide in the lounge room in he’s (sic) chair. It was always worse when he was drunk or had returned from drinking. They would argue for hours, Ms Britt always pushing and pushing.

    [69] Affidavit of Mr D filed 3/04/2019, para 7

14. His affidavit is a detailed account of a miserable, dangerous childhood. He recalled and recounted in the witness box his mother shooting at his father and at him with a rifle when he was primary school age, and at age 15, her hitting him with a shovel which cracked a vertebra.

15. The relevant facts are that there were guns on the property. Both parties and the children as they grew up knew well how to use them. Guns were used by the parties to menace and threaten each other and at least one of the children.

16. It seems likely that each party wanted rid of the other but held back.

17. The husband alleges that an incident occurred during this time when the wife was punching him in front of Mr Y.[70] The husband further alleges that the wife would punch the children and on one occasion where the husband told the wife to stop, the wife is alleged to have replied “well you can get it then” and started to punch him with a clenched fist on his head and body.[71]

    [70] Affidavit of Mr Britt filed 4/04/2019, para 52

    [71] Affidavit of Mr Britt filed 4/04/2019, para 51

18. I conclude that the husband was not fearful of the wife but understood that she was a good shot and was a danger to him with a gun in her hands when she was angry with him. I also conclude that in a perverse way he found such situations entertaining, even enlivening.

19. I also conclude that the wife did feel fearful of the husband at times but was so angry about what her life was that she was beyond caring about her own safety.

20. The husband stated that he is ashamed he was unable to protect the children.[72] The evidence supports a finding that the husband did not act protectively of the children or of the wife when she was a young girl under his control.

    [72] Affidavit of Mr Britt filed 4/04/2019, para 31

21. I have come to the conclusion although family violence was a feature of daily life for most of the parties’ relationship, no such adjustment should be made. It is simply not just, to attempt to extract the truthful elements of so many allegations and to attempt to analyse the impact on the contributions made by the wife.

22. What is just is to recognise the losses suffered by the wife in entering into an adult relationship with the husband and becoming a mother when she was still a child. An adjustment to recognise the loss of opportunity for education, for satisfying work and to mature safely is the more appropriate course.

23. I take the following identified factors into account: disparity of income, the impact of the marriage on the wife, the obligations of the husband and his age, and the inheritance of the husband which is a resource in his hands. An adjustment in favour of the wife which brings the parties to an equal share in current net assets is appropriate.

24. The outcome is an adjustment in favour of the wife to achieve an equal sharing of the net asset pool with the husband retaining the balance of his inheritance as a resource. A sum of $421,013 is required to be paid to the wife to achieve that outcome.

4. Is the adjustment contemplated just and equitable?

1. The relative position of the parties after the payment proposed is as follows.

2. Husband retains:

Item 1	$1,205,000
Item 2	$805,000
Item 5	$126,799
Item 7	$43,835
Item 8	$5,000
Item 9	$11,300
Item 10	$2,000
Item 11	$6,000
$2,204,934
Less liabilities	$277,732
Total	$1,927,202
Less payment to wife	$421,013
TOTAL	$1,506,189

1. Wife retains:

Item 3	$470,000
Item 4	$15,300
Item 6	$2,000
Item 18	$597,876
Total	$1,085,176
Plus payment from husband	$421,013
TOTAL	$1,506,189

1. Had the balance of inheritance been included as an asset in the pool, the overall division would have been in the order of 42 percent to the wife and 58 percent to the husband. Such a division would adequately have recognised the fact that the wife made no contribution to the inheritance of the husband, and that he retains the inheritance as a resource.

Conclusion

1. The husband is unlikely to sell Property A1. He could borrow in order to pay the sum of $421,013 to the wife, or could use his inherited funds.

2. The wife will retain her home and will have a substantial fund for the future.

3. I conclude that the adjustment proposed is just and equitable in the circumstances as they existed at this second trial.

4. Orders are made accordingly.

I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 December 2019.

Associate: 

Date:  19 December 2019