CAWTE & CAWTE
[2017] FamCA 1150
•21 September 2017
FAMILY COURT OF AUSTRALIA
| CAWTE & CAWTE | [2017] FamCA 1150 |
| FAMILY LAW – CHILDREN – Where orders are made on an undefended basis – Where the husband’s current whereabouts are not known – Where there is a history of family violence – Where the wife asserts that there is a need to protect the children from their father which outweighs the benefit of them spending time with him – Where orders are made for the wife to have sole parental responsibility – Where orders are made for the husband to spend time no with the children. FAMILY LAW – PROPERTY – Where orders are made on an undefended basis – Where the mortgagee of the matrimonial property has commenced proceedings – Where the husband has been removed from the property – Where the wife has obtained an order that she control the sale of that property – Where the wife seeks orders that after the property is sold and all liabilities are paid then the husband retain his superannuation and certain household contents and she retain the balance – Where the orders sought by the wife represent a division of property in her favour of about 71.9 per cent – Where the wife made greater initial contributions, non-financial contributions and post-separation contributions – Where the wife asserts that the husband’s actions have resulted in waste – Where orders are made in accordance with those sought by the wife. |
| Family Law Act 1975 (Cth) |
| Black & Kellner (1992) FLC 92-287 Kowaliw & Kowaliw (1981) FLC 91-092 Weir & Weir (1993) FLC 92-338 |
| APPLICANT: | Ms Cawte |
| RESPONDENT: | Mr Cawte |
| FILE NUMBER: | SYC | 116 | of | 2016 |
| DATE DELIVERED: | 21 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Taperell Rutledge Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
(Orders made 21.9.2016)
The Minute of Orders be marked as Exhibit 7 and I make orders in accordance with Exhibit 7 as amended.
I reserve my reasons for judgment.
The wife is to serve a copy of these orders upon the husband’s father with a request in writing to the husband’s father to provide them to his son should an opportunity arise where the husband’s father is able to do that either personally or by sending them to him.
I discharge any previous cost order that has been made in the wife’s favour.
Exhibit 7
Parenting
Order that the Applicant/Wife (the “Wife”) has sole parental responsibility for the children of the marriage, namely:
1.1B born … 2000 (“B”); and
1.2C born … 2009 (“C”).
("the Children").
Order that the Children live with the Wife.
Order that the Respondent/ Husband (the “Husband”) shall spend no time with the Children unless there is a further order that allows him to do so or there is written agreement of the Wife that he do so and provided that, pending further order or agreement, that time be under supervision at an authorised contact centre.
Property
Notation that the husband has not complied with Order 1.3 made 23 May 2016 and Order that orders 1.3, 1.4 and 1.5 made 23 May 2016 are confirmed.
Notation that:
5.1‘Business Overdraft Account’ refers to the CBA overdraft cheque account No. …32 in the sole name of the Husband and of which the Wife is Guarantor;
5.2‘CBA’ refers to the Commonwealth Bank of Australia;
5.3‘Commonwealth Home Loan’ refers to CBA loan account No. …01 in the joint names of the parties; and
5.4“Home” means the property at D Street, Suburb K in the state of New South Wales being the whole of the land and Certificate of Title folio identifier … and no…;
Order that order 1 made 20 June 2016 is confirmed and that the Wife is to continue to have the sole conduct of the sale of the Home.
Order if the Home is sold pursuant to these orders by public auction:
7.1the costs of the auction shall be part of the costs of the sale and shall initially paid by the wife; and
7.2each of the parties shall have the right to bid at the auction sale.
Order that upon settlement of the sale of the Home pursuant to these orders the parties shall do all acts and execute all documents that may be reasonably necessary to cause the proceeds of the sale to be distributed in the following manner and priority:
8.1to pay the reasonable expenses of the sale including the agent’s commission, legal costs and disbursements;
8.2to pay rate adjustments;
8.3to pay the balance then outstanding on the:
8.3.1Commonwealth Home Loan;
8.3.2Commonwealth Overdraft Account;
8.4to discharge Registered Mortgage No. … to the Commonwealth Bank of Australia which is presently secured upon the Home; and
8.5to pay in respect of the Home:
8.5.1rates arrears payable to the F Council;
8.5.2water charges arrears payable to G Water;
8.6to pay to the Australian Commissioner of Taxation the sum of $35,975.00 on behalf of the Mr Cawte & Ms Cawte ABN … on account of an estimate of unpaid GST;
8.7to pay Company H a sum not exceeding $3,246.10 towards account number … in the sole name of the Husband;
8.8to pay Company I a sum not exceeding $4,409.45 towards account number … in the sole name of the Husband;
8.9to pay CBA a sum not exceeding $41,681.94 towards the Husband’s credit card number …;
8.10to reimburse the Wife for costs on an indemnity basis in a fixed sum of $113,000;
8.11to pay the balance then remaining to the Wife.
Order that until completion of a sale of the Home pursuant to these orders the Wife shall have the right to occupy the Home (to the exclusion of the Husband).
Order that until completion of a sale of the Home pursuant to these orders the Husband shall continue to make the following payments as they fall due:
10.1all mortgage instalments in respect of the Commonwealth Home Loan;
10.2all loan instalments in respect of the Business Overdraft Account; and
10.3council and water rate instalments.
Order that within 14 days of the date of these orders, the Husband do all acts and execute all documents as may be reasonably necessary to transfer to the Wife the whole of his right, title and interest in:
11.1Commonwealth Bank of Australia account numbers …75, …45, and …38 currently in the joint names of the parties; and
11.2the items in Schedule ‘A’ including any assets belonging to the business operated by Mr Cawte & Ms Cawte ABN ...
Order that until completion of a sale of the Home pursuant to these orders the Wife shall continue to make payment as it falls due in respect of the costs of all services supplied including accounts for household building and contents insurances, electricity, telephone and gas usage.
Order that the Husband shall indemnify the Wife and keep her indemnified against any further liability for outgoings in respect of interest, fees (including legal fees) and her costs associated with complying with the guarantee she provided in relation to the Business Overdraft Account where such charges cause the balance then outstanding to the Commonwealth Bank of Australia to exceed $165,682.77.
Order that each of the parties shall produce and execute all documents and instruments and do all other acts and things as may be reasonably necessary to give effect to these orders.
Order that the Husband collect the items listed in Schedule ‘B’ from the Home within 14 days of these Orders.
Order that if the Husband does not comply with Order 15, the Wife shall be at liberty to dispose of the items and shall:
16.1deduct her reasonable costs of storing and/or disposing of them; and
16.2either:
16.2.1pay the net proceeds of the disposal to the Husband or as he directs; or
16.2.2in the event that the Husband fails to direct how he is to be paid within 14 days of a request, she shall cause the net proceeds of the disposal (if any) to be invested with the Public Trustee in the sole name of the Husband.
Declare that the Husband has no interest in the Wife’s:
17.1interest in member number … with J Super;
17.2Motor vehicle 1; and
17.3CBA account number …09.
Order that if either of the parties fails, refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these orders a Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party and to do all acts and things necessary to give validity and operation to the deed or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Order that the Wife is granted leave to provide a copy of these orders to:
19.1G Shire Council;
19.2The Commonwealth Bank of Australia;
19.3The Australian Taxation Office.
or their authorised legal representative.
Schedule ‘A’ – To be Retained by Wife
Motorcycle 1
Motorcycle 2
Utility
2 Go Carts & trailer
Original photograph 1
Miscellaneous personal effects (from my current home)
Motorcycle 3
Round mat
Washing Machine
4 Blenders
Timber speakers
Home guard safe
Timber chairs (x2)
Dishwasher
TV
Blue Ray Player
Square mirror (blue and beige)
AV Receiver
Stools (x4) and cushions
C’s cot and change table
Black metal frame bedhead and mattress
Bedside table (x2)
Original canvas
Wooden Picture
Tripod chrome floor lamp
Picture (Horse)
Canvas pictures (x 3)
Framed Pictures:
Original photo 2
Autographed jersey
Autographed sportsman photo 1
Autographed celebrity photo
Autographed sportsman photo 2
Original photo 3
10 Indian commandments
Autographed sportsman photo 3
Assorted pictures
Assorted Car and Motorcycle Equipment
Motorcycle Exhaust
Go-cart tyres brand new (x12)
2 & 3 seat leather recliners and lounge furniture
6 seat dining set with matching corner lounge,
Coffee Table, TV Stand and Buffet
Wall mounted display screen
Roof mounted video projector
2 Bean Bags
Microwave
Schedule ‘B’ – To be Retained by Husband
4WD (“4WD”)
Miscellaneous crystals
Home Entertainment & Electrical
Audio & Hi Fi Equipment
Assorted pornography (DVDs and Magazines)
6 Televisions
Lighting Equipment
Telescope and tripod
5 Extra large speakers
Computers and Printers
DJ soundboard
Musical Instruments
Realistic sex toys (x5)
Assorted Statues
Various Egyptian Figures (x5)
Goddesses & Angels (x2)
Fossil
Pharoah (x4)
Buddas (golden & black)
Replica of David
Globe
Eagle
Elephant (x3)
Atlas
Bamboo fountain
Sporting Equipment
Golfing equipment (buggies, bag & clubs)
Assorted sporting equipment
2 Sailboards
Work out bench
2 Surfboards
Rowing machine
Single ski
Men’s mountain bike
Treadmill
Kite board
Full set of weights
Chin up bar
Boxing bag & gloves
6 Life jackets
Rackets - Tennis and squash
Skate board
Exercise bike
Assorted Furniture
Home Appliances and Whitegoods
Bedroom Furniture
Wooden TV Cabinet
U shaped office desk
Miscellaneous contents
Black leather bar stools (x6)
Electric heater
Balinese cushions (x5)
Assorted mats and rugs
office chairs (x 4)
Timber buffet
Leather Massage table
Eight seat table
Round table
Timber seat (shaped like hand)
Assorted Ottomans (x7)
Black mirror
Wooden tribal mask
Three basket storage (white)
Four cube storage cabinet
Egyptian Themed Items
Egyptian display cupboard & contents
Egyptian plates (x4)
Egyptian chess board and pieces
Egyptian bowls (x5)
Outdoor and Camping Equipment
3 Gas heaters
Camping fridge and freezer
Assorted camping gear
31 Car chargers
22 Outdoor chairs
Assorted Car and Motorcycle Equipment
Assorted car speakers and sound systems
Assorted maintenance and cleaning products
Motorcycle clothing & helmets
Assorted petrol and oil
Mag Wheels and tyres (x3)
Outdoor Appliances
Assorted gardening tools and equipment
Mower
Whipper snipper
Wheel barrow
Tools and Equipment
Blue petrol generator
Assorted power tools
Red mechanics tool box
Black mechanics tool box
Mechanics under-car trolley
Red rotor tool box
Trailer storage box
Extension ladder
Blue industrial fan
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 Cawte & Cawte 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 SYDNEY |
FILE NUMBER: SYC 116 of 2016
| Ms Cawte |
Applicant
And
| Mr Cawte |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Orders were made on an undefended basis on 21 September 2016. I reserved my reasons for judgment. These are those reasons.
The wife successfully sought that this matter be heard on an undefended basis. The husband did not appear when the matter was in a duty list on 19 September 2016 or when the matter was adjourned to 21 September 2016 for hearing. The husband had been made aware that the matter was listed for final hearing on 19 September 2016 by way of letter which was posted to the husband. Exhibit 2 is a photo taken by the wife of the letter which had been opened and written on by the husband.
The husband was present in court on 23 May 2016 when orders were made by consent for the husband to vacate the parties’ former matrimonial home at D Street, Suburb K, NSW (“the K property”) and for the net proceeds of sale to be held on trust. Similar orders had previously been made on 15 February 2016 (with no appearance by the husband) for the husband to vacate the K property and for the wife to sell the property by private treaty. The husband subsequently breached the 23 May 2016 orders and pursuant to order 2 a warrant for possession was issued. On 20 June 2016 orders were made in absence of the husband for a writ of possession. On 12 August 2016 the husband was removed from the K property.
The husband has been served with all documents to date except the wife’s most recent affidavit and exhibits dated 15 September 2016 (which have been previously served on him but contain updates to some figures and an update in relation to a breach of an AVO on 2 August 2016). The orders sought by the wife in her minute of order have not been served on the husband (which orders differ from those sought in the wife’s Initiating Application filed 11 January 2016 in that it specifies the household items in respect of which the wife has now prepared an inventory).
In her oral evidence the wife confirmed that she and the husband’s parents did not know where the husband currently was.
There are no parenting orders currently in place for the parties’ children, B, born in 2000, currently aged 16 (“B”) and C born in 2009 currently aged 8 (“C) (collectively “the children”).
While the orders sought by the wife have slightly been amended, those differences are not sufficient for me to adjourn the proceedings until the husband re-emerges and is able to be served. I take into account the background of the husband’s lack of involvement and disregard of orders, in this case. The mortgagee of the K property has taken possession. The wife has obtained an order that she control the sale. The wife is entitled to a final resolution of the case and should not be thwarted by the husband’s non-participation in the proceedings.
APPLICATIONS
The orders sought by the wife became Exhibit 7 and are set out in Schedule 1.
DOCUMENTS RELIED UPON
Initiating Application filed 11 January 2016;
Notice of Risk filed 11 January 2016;
Financial Statement filed 11 May 2016; and
Affidavit filed 15 September 2016.
SHORT HISTORY
The wife was born in 1964.
The husband was born in 1973.
The parties commenced a relationship in late 1998. They commenced cohabitation in March 2000 and were married in 2002.
The parties’ first child, B (“B”), was born in 2000.
The parties’ second, C (“C”), was born in 2009.
The parties separated on a final basis on 6 August 2014.
DETAILED CHRONOLOGY
The wife was born in 1964 in the UK.
The husband was born in 1973.
In 1987 the wife married her former husband in the UK. In about 1991 they immigrated to Australia and purchased a property in Suburb E (“the Suburb E property”). On 17 January 1994 the wife’s former husband died as a result of a work related accident and the wife received an insurance payout which was applied to discharge the mortgage on the Suburb E property.
In early 1997 the wife commenced a Certificate III at TAFE.
The parties commenced a relationship in late 1998. They commenced cohabitation in March 2000 in the Suburb E property when the wife was pregnant with B. A friend of the wife’s, Ms L, resided with the wife prior to the husband moving in with her. The wife and Ms L shared the housework and continued with building and renovating the house as the wife and her former husband had planned prior to his death. These renovations were complete by the time the husband moved into the property. Ms L continued to live with the parties until mid-2001.
In 1998 the wife commenced working.
In May 2000 the husband commenced operating a business called Company M on property owned by the paternal grandfather. The paternal grandfather permitted his home to be used as security for the husband to obtain a $60,000 business overdraft facility. The husband also paid the previous tenant approximately $40,000 for the stock in trade. When the business later started to become profitable, the paternal grandfather requested that the husband change the security interest from his home to the Suburb E property. The husband subsequently arranged for the business overdraft account to be secured against the parties’ mortgage requiring the wife to become a guarantor for the loan. When the business was performing well, the wife resigned from her position.
The parties’ first child, B, was born in 2000.
The parties were married in 2002.
In 2004 the parties purchased land in N Street, Suburb O for approximately $330,000 (“the Suburb O property”). The wife’s Suburb E property was sold for $430,000 and the entire net proceeds were applied to the purchase of the Suburb O property. The parties’ engaged a friend to build a house on the property and they moved in during December 2004.
In 2006 the wife says that there was a problem at the husband’s business and he became stressed about the business. During this time the wife stepped into the husband’s role in the business, as she says he was partying a lot, using illicit substances and spending a significant portion of the day on the couch. The wife was unable to run the business successfully. At about this time the husband joined the P Club. The wife says that the husband began playing golf with friends each Wednesday following which they would drink heavily before driving home and on many occasions they would then drink spirits and smoke marijuana. The wife says that during this time the parties had many arguments which she says almost resulted in their separation.
The parties’ second child, C, was born in 2009.
On 1 July 2011 the husband commenced operating the Company M business as a joint partnership with the wife. However, the business overdraft account was not changed to operate in joint names and the wife does not remember if she signed any documents and says she did not perform any operational or managerial role except for some minor activities.
In August 2011 the parties’ purchased the K property by way of private treaty for $1,380,000. The parties spent an additional $200,000 on renovations on the property (for which they paid cash due to the success of the Company M business at this time).
In July 2012 the parties sold the Suburb O property for $810,000. The net proceeds of $452,944.69 were deposited into the Commonwealth Home Loan account.
After moving into the K property, the wife says the husband started spending significant amounts of time in his office when he was at home researching topics such as social behaviour, alcohol abuse and conspiracies about the 9/11 attacks. She says he withdrew from spending time with her and the children.
On 23 July 2012 the husband drew down $30,000 from the Commonwealth Home Loan account. The wife later discovered that he used those funds for a deposit on a utility motor vehicle which he was importing from America (“the Utility”).
On 12 October 2012 the husband drew down $70,000 from the Commonwealth Home Loan account for a further instalment on the Utility. On 18 October 2012 he drew down a final instalment of $9,000. At around this time the wife says the husband purchased a trailer to carry go-carts for approximately $32,000. She says he also purchased a Motorcycle 1 for $42,000 and a Motorcycle 2 without her consent.
On 7 September 2013 the husband was charged with possession of drugs and a prohibited weapon. He was placed on a nine month good behaviour bond and fined $200.
On 5 November 2013 the wife attended her first counselling appointment at Q Group.
One morning in April 2014 the wife called the police and reported the husband missing. At 7.00pm the husband returned extremely sunburnt wearing some hessian cloth around his waist and a loin cloth. The police arrived and told the wife to ring the mental health department if she was still concerned. Several days after this incident the wife says the husband changed his Facebook name to “… [Cawte]” and said to the wife “I am the chosen one”. The husband said he was having his last supper and after pouring candle wax over himself, spoke to a priest who then urged the wife to call the mental health unit. The wife called the mental health hotline and soon afterwards both the police and an ambulance arrived. The husband subsequently spent three weeks in the Mental Health Unit at G Hospital. Following the husband’s discharge in about mid-May 2014, the wife suspected that the husband had ceased taking his prescribed medication and observed him smoking marijuana.
The parties separated on a final basis on 6 August 2014 when the wife left the K property with the children. They initially resided with the husband’s parents.
On 7 August 2014 the wife attended a counselling appointment at Q Group. The wife explained to the counsellor what had occurred the previous evening (detailed below).
In February 2015 the husband closed down the Company M business and sold off the stock at a heavily discounted price.
In about March 2015, after living with the paternal grandparents for seven months, the wife and children moved into rental accommodation in Suburb E. The rent cost $550 per week. The husband asked a friend of his to look after the children’s dogs as the lease conditions of the rental property did not allow pets.
After moving into the rental accommodation in Suburb E, on several occasions the wife attended the K property to collect her and the children’s personal belongings. The wife asked the husband if she could take some furniture but he would not let her, saying he was trying to start a business in the property and needed some furniture. The husband did allow the wife to take the children’s furniture. She says there were several instances when she was removing belongings that the husband became angry and started to shout at her.
On 27 May 2015 the wife and B made statements at G Police Station about the husband’s behaviour on 14 April 2015 (discussed below) and on 29 May 2015 the husband was arrested.
An AVO was issued for two years on 26 August 2015 listing the wife and both children as protected persons.
On 1 September 2015 the business overdraft account became overdrawn beyond its limit of $150,000.
On 30 December 2015 the wife received a telephone call from the paternal grandfather advising that he had not heard from the husband for over a week. Police later attended the K property to do a welfare check and the husband was there.
On 11 January 2016 the wife filed an Initiating Application.
On 11 February 2016 the wife received a letter from the CBA dated 9 February 2016 enclosing a default notice.
On 15 February 2016 orders were made with no appearance by the husband for the husband to vacate the K property within 14 days and for the wife be authorised to conduct its sale.
In March 2016 the wife and children moved into their current rental accommodation in Suburb R which allows pets. The rent costs $580 per week.
On 22 April 2016 CBA commenced proceedings against the parties.
On 23 May 2016 the matter was listed for a final hearing. The husband attended and entered into the following consent orders made by Justice Loughnan:
1. That the husband vacate the former matrimonial home by 30 May 2016.
2. In the event the husband does not comply with Order 1 … Order 1 above be enforced and that a warrant for possession be issued without further notice to the husband…
…
On 20 June 2016 an interim hearing occurred in the absence of the husband where Justice Loughnan issued a writ of possession stayed until seven days following service upon the husband.
On 6 July 2016 orders were made removing the stay and issuing the writ of possession. On 13 July 2016 the Marshal delegated power to enforce the writ to the NSW Sherriff.
On 2 August 2016 the AVO was breached by the husband. The husband had attempted to ring the wife’s mobile several times and then he left a voicemail requesting the wife and children to see or speak to him. The wife then saw the husband outside her home and reported the incident to the police. On 23 August 2016 the husband was fined $500 for breaching the AVO and a conviction was recorded.
On 12 August 2016 the husband was removed from the K property by way of the writ of possession (Exhibit 1).
FAMILY VIOLENCE
The wife makes allegations of family violence against the husband. The wife says that she remains fearful of the husband.
After the parties commenced cohabitation in 2000, the wife says that she observed the husband’s behaviour towards her to be controlling and manipulative. She gives the following examples in her affidavit:
60.1.The husband would often return home drunk after going out without the wife; and
60.2.The husband would demand sex from the wife no matter what time of the night it was that he got home. If the wife did not consent an argument would result during which the husband would raise his voice and tell the wife that he felt like killing himself as he was always the instigator of sex.
The wife also says that after the parties commenced living together they frequently had arguments about one or more of the following:
61.1.The husband’s method of disciplining the dog which was to kick it when it misbehaved;
61.2.The husband frequently held parties at the Suburb E property irrespective of whether the wife wanted to entertain guests or not; and
61.3.After the husband’s business became successful, he purchased expensive items including a boat, at least three utes, two motorised go-carts and a trailer, a jet-ski, two motorcycles, a home theatre and stereo units, speakers, a caravan and camping equipment.
In 2005 following an argument about the husband’s purchase of a set of speakers, the wife says the husband lifted her up against a wall by her throat. B reported this incident to FACS in 2015.
In October 2010 the wife says she came home to find that the husband had shut B in her room and B had urinated herself. The wife took B out of her room and cleaned her up. The husband, wife and B then had an argument about the incident following which the husband hit B on the leg with a wooden spoon. B’s school noticed the mark that the wooden spoon had left on her leg and requested the wife attend the school. The wife attended B’s school to discuss the incident and the fact that she was being bullied at school. Not long afterwards, FACS contacted the wife and requested that she attend an interview about the incident. During the interview, the wife says she tried to “cover up” for the husband and explained that he was suffering from depression.
In early 2011 while the husband was hosting a party at the parties’ house, the wife observed the husband striking B across the face.
On 21 March 2011 B reported to FACS (Exhibit 4) that the husband yelled at her, called her an “idiot” and to “shut-up” and said that she was going to go to boarding school. B remembered the husband saying “I want to kill you”. That evening, B told the wife that she did not want to stay at home and the wife organised for B to stay with the paternal grandparents.
In 2012 whilst the family were on a camping trip B told the wife that the husband had slapped her on the face.
In early 2013 the wife says the husband prepared a drink for her one evening and she says when she eventually became aware of her surroundings she was naked and the husband and a male friend of his were sexually assaulting her. The wife did not report the incident to the police but told a friend and her solicitor at the time. Several days after the incident the wife had a car accident. The wife told the husband about the accident and she says he told her that it was probably a result of the drugs that were in her drink.
In August 2013 the parties were travelling by car to attend a concert in Sydney. The parties were arguing in the car and the wife says that the husband threatened that if the wife were ever to leave him he would shoot her in the head with a gun. The husband dropped the wife back at their home and the parties did not attend the concert.
A FACS report dated 17 August 2013 notes the following (Exhibit 4):
The extent of harm includes child/young person has symptoms of significant psychological harm. Child is experiencinbg (sic) significant psychological harm that is related to a persistent pattern of parent behaviour including hostility and serious unreported Domestic Violence. Information reported also indicates there is a severe pattern of parent behaviour presenting an imminent risk of psychological harm (this is based on fathers aggression/threats being frequent and he is controlling of the mothers life. In addition mother’s reluctance to seek further assistance and protective intervention increases risk of significant harm to the children. The extent of the father’s violent behaviours and other complicated characteristics’ identified in this report would suggest the issues of risk of significant harm will continue and/or escalate The allegations reported are highly concerning and require FACS intervention.
On 11 October 2013 C attended upon Dr S who noted that C was “having help and counselling support to try and prevent the psychological trauma she has been going through from causing any long term damage … Father has been taking drugs for many years and has been psychologically abusing wife and [C’s] elder sister. He seems to have some psychiatric illness but refuses to see medical help. [C] has been self hitting a few times”.
On 25 November 2013 the wife attended upon Q Group for counselling which notes that the husband continues to be abusive and the wife has identified that the husband is controlling and emotionally abusive (Exhibit 3).
The FACS records (Exhibit 4) note that on 13 April 2014 the husband spat in B’s face. On 16 April 2014 it was reported to FACS that B was fearful of returning home due to threats the husband had made to her (she was currently away with family members). The report notes that the husband had telephoned B on 14 April 2014 and aggressively threatened “to come and collect her, called her a c**t and verbally abused her saying she would ‘cop it’ when she ‘got home’. [B] is described as being ‘terrified’ of him coming and finding her”.
On 6 August 2014 the parties had a conversation following which the husband turned music up very loud and later left the room. About half an hour later the husband returned. The wife says the husband was no longer angry but his speech was erratic and he “rambled over different topics”. She says she could smell marijuana on his breath. The husband then told B that he had told the wife that he had had a “fling with a hooker”. After B asked the husband if she could record their interaction the husband demanded B’s phone from her. At about 9.30pm the wife and children left the K property. The parties separated on this date.
On 4 September 2014 the wife attended upon her counsellor at Q Group who noted, “Seen [the wife], still going back to [the husband] “to sort out the house” etc. Explained that I am not happy that she is letting [C] go back to the house. Has promised me that she will stop allowing [the husband] unsupervised contact. Again underlined the importance of keeping both girls safe.”
In April 2015 the husband spent time with C at the K property. Upon collecting C, the wife observed that she was upset and had been crying. C said that the husband had shouted at her for making a mess.
On 14 April 2015 the wife received numerous telephone calls and text messages from the husband. At about 5.00pm the wife arrived at the K property with the children. When they were all inside the house, the wife moved towards C who was drawing on the ground, and the husband raised his arm to prevent her from reaching C. The husband requested B to go downstairs but B responded ‘No’. The wife says that the husband then pushed B causing her to fall and then continued to yell at B and called her “a fucking cunt”. B and the wife then went downstairs. After five or 10 minutes the wife returned upstairs to C and the husband and says the husband began to yell at her with his nose next to her nose. The husband then picked C up and carried her to the master bedroom. As he was attempting to close the door, the wife tried to push her way into the bedroom but the husband used his elbow against her throat to try and push her out of the doorway. The wife managed to get into the bedroom and B followed after her. The husband kicked an exercise ball against the wall and put C on the bed. The wife picked C up and told the husband they were leaving. The husband yelled at the wife and the children as they left. The wife and B made statements to the police that day.
In the Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 11 January 2016 the wife also states, in relation to the incident on 14 April 2015 (in that document she says the incident occurred on 15 April 2015):
He caused [C] and [B] psychological harm when he attempted to prevent the Mother from removing [C] from the exposure to the family violence and that when she did eventually manage to remove [C], that the Father then further yelled at both the Children and the mother, “fucking cunts, you fucked my life”.
And further than [sic] on 15 April 2015, the Father texted [B] and wrote to her: “[B] YOU WOULD BE A SIZE 8 IF CANNABIS OIL WAS LEGAL. DO YOU WANT ME TO REPOEAT [sic] THE LAST SENTENCE.” And that in writing this to her, exposed her to family violence.
On 29 April 2015 a report was made to FACS as follows (Exhibit 4):
[B] (14yrs) and [C] (6yrs) are at significant risk of physical harm due to the father “shoving” [B] forcefully almost causing her to fall over. He was further ‘charging’ at her and ‘shoved’ [B] while she was going down the stairs, causing her to almost fall down the stairs.
The father also engaged in physical DV with the mother whilst holding [C]. “Dad elbowed Mum in the neck and trotted on her foot to get her away. [C] was screaming. The caller assumed Dad was still holding [C] at the time. Mum grabbed [C].”
The children are also at risk of significant psychological harm due to being exposed to multiple incidents of domestic violence between their parents. Concern is held for comulative (sic) harm, particularly for [B] who has disclosed incidents she recalls since about the age of 8yrs old.
During the current incident, the father was highly verbally abusive toward [B], blaming and criticising. It is noted that when [B] was shoved by her father she started crying. [B] was also trying to support [C] who was screaming during this incident.
There is a parental risk factor of domestic violence identified. KIDS records indicate an ongoing concerns for domestic violence with the father being the perpetrator and a pattern of power and control existing. Although the mother has now moved out of the home with the children, it appears there is ongoing contact and she remains reluctant to seek an AVO. It is reported that the father shows up unexpectedly at the mother’s house.
In May 2015 the wife, B and the husband were driving in a car. The wife says that the husband told B that he would soon buy her a vibrator.
As stated above, on 26 August 2015 an AVO was issued against the husband for a period of two years listing the wife and both children as protected persons.
On 10 November 2015 the wife sent an email to Q Group stating:
Not having to deal with the constant manipulation, threats and constant messages has been such a relief. We have had pressure from the [Cawte] family to see [the husband] and to lift the AVO despite them thinking that he has a mental health problem and has been mainly due to [the husband’s] threats that he will kill himself. We have tried to get him to seek councilling (sic) but haven’t succeeded and he still believes he is on the right path and there is nothing wrong with him. He has accused both myself and [B] of spreading lies about him and discrediting his name [in Region F] … it’s possibly been the hardest and most stressful time over the past several years and of course wish I handled things differently but can only keep moving forward for a better way of life for myself and the girls.
THE HUSBAND’S DRUG USE
In about early 2013 the husband told the wife that he had been spending a lot of money on “hookers and drugs”, mainly cocaine and speed. Also in 2013 the husband told the wife that she should start using cannabis as it “removes all of the stresses from your life”.
In 2014, at a birthday party for C, the wife observed the husband to sprinkle marijuana over his salad and consume it and discuss it in front of the children and their guests.
The wife sets out risks associated with the husband’s drug use in the Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 11 January 2016. She states:
The Father has repeatedly indicated to the Mother that the children should be given cannabis oil.
In relation to [B], that this would be an appropriate medication to assist [B] in losing weight.
In relation to [C Cawte], that cannabis oil is an appropriate medication to cure many different ailments, including but not limited to cancer, which [C] does not have.
The Father is a drug user including but not limited to using cocaine, speed and canabis (sic).
A search warrant executed by the police upon the Father’s resident [sic] after separation discovered two (2) Tasers and a quantity of cannabis indicating that the Father has concealed weapons and drugs while the children were present and may have been under the influence of those drugs while he had the care of the children.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
Whilst the children would benefit from having a meaningful relationship with their father and a pathway for that to happen should remain open, the court must, in the circumstances of this case, construct orders which give greater weight to the significant risk factors which have been identified.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
Incidents of family violence alleged by the wife are set out above.
The wife says that she fears for the physical and psychological wellbeing of the children if they were to spend time with their father in an unsupervised setting.
B is currently attending upon a psychologist, the wife says, due to her relationship with her father.
The wife asserts that the need to protect the children currently outweighs the benefit of them spending time with their father and I accept that is so.
The additional considerations
Children’s views (s 60CC(3)(a))
B currently indicates that she does not wish to spend any time with her father. Given her age, that is a weighty consideration.
Relationships of the children with the parents and other persons (s 60CC(3)(b)) participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))
The wife says that she has always had the primary care of the children. Since the parties’ separation she has had sole care of the children and they have resided with her. I am satisfied that the children’s primary attachment is with their mother.
Since the AVO was issued on 26 August 2015 the children have not spent any time with their father. Since the parties’ separation in August 2014 the husband had spent almost no time with B. Prior to the AVO being made, the husband had spent some time with C but has not spent any overnight time with her since the parties’ separation. In her oral evidence, however, the wife said that in around Christmas 2015 the husband was at his parents’ house when the children were there. She says the children remained in the house while the husband was in the backyard.
The wife says that the children have a close and loving relationship with the paternal grandparents and spend frequent and significant time with them. The wife also has a good relationship with the paternal grandparents. After the wife left the K property, she and the children resided with the paternal grandparents for seven months. Presently, if the wife is working during the week, the paternal grandparents will pick the children up from school and look after them until the wife finishes work. They also care for the children if the wife needs to work during school holidays. The wife says that the children will maintain their relationship with the paternal grandparents.
The children see the wife’s sister, who lives in Suburb O, at least every week.
Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))
The wife solely provides for the children and has done so since the separation.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
The children currently live with the wife and are currently not seeing their father. The children should not be subjected to any further changes to their circumstances without a further order or agreement and pending further order, only at an authorised contact centre given the current risk to their physical and psychological/emotional wellbeing.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
The current whereabouts and contact details for the husband are unknown.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))
The wife adopted the advice of FACS and that of her counsellor and removed the children from the K property and took steps to protect them from the husband.
In the past the husband demonstrated angry and erratic behaviour. He discussed drugs and prostitutes with or in front of the children.
The wife, after receiving counselling and assistance from the paternal grandparents, is able to provide for the children’s emotional and intellectual needs. She says she is able to protect them from exposure to family violence and any psychological damage which my potentially be perpetrated by the husband.
The husband has sent the children text messages about cannabis oil. I accept the wife is genuinely concerned that the husband, given his views about cannabis, may attempt to medicate C with cannabis oil if he were to spend unsupervised time with her.
The wife says she is unable to afford the children’s school fees and has commenced discussions with the school Principal to allow B to continue attending the school until she completes Year 12. The wife anticipates making an application for an exemption of fees for financial hardship upon her entry into Year 11.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
B is currently attends T School. C is currently at Suburb R School. As indicted, B’s maturity means her views need to be given weight.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not applicable.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
There is an AVO currently in place for two years protecting the wife and children which expired on 26 August 2017.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
The orders proposed will bring the proceedings to an end unless there is some subsequent application by the father.
Any other relevant fact or circumstance (s 60CC(3)(m))
There is nothing further of any relevance.
DOES THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY APPLY IN THIS CASE?
Given the history of family violence, the presumption of equal shared parental responsibility does not apply.
A further difficulty with an order for equal shared parental responsibility is that the wife does not know how to contact the husband and neither do his parents.
If an order for sole parental responsibility were made in the wife’s favour, the wife indicates, and I accept, she would attempt to advise the husband of any significant decisions in relation to the children and/or at least invite the husband to have some input into the decision making process. I do not, however, intend to make that a condition of the order that the wife have sole parental responsibility for the children.
BEST INTERESTS
The physical and psychological harm posed by the husband outweighs the benefit of the children currently spending time with him.
B has strong views about not spending time with her father. The wife says that C is still young and does not remember incidents that have occurred as B does.
The husband appears to have some serious mental status problem at the current time. The children last spent significant time with their father in August 2015 when an AVO was issued although there was a short interaction in Christmas 2015 (discussed above).
The wife submits that any time the husband was to spend with the children would need to be supervised. She says she would be concerned that if the husband was under the influence of marijuana he would say “crazy things” and C should not be subjected to that unless the husband proves he is willing to change and get some help.
Given that the husband’s current whereabouts and mental condition are unknown, I will make an order in accordance with that sought by the wife in Exhibit 7 that the husband is to spend no time with the children unless further order or written agreement from the wife allows him to do so and pending further order or agreement such time is to be supervised at an authorised contact centre.
PROPOSED ORDERS
I will make orders in accordance with Exhibit 7.
I have made an order that the substantive orders shall be given to the husband’s father with a request that the husband’s father provide them to him should that opportunity become available, either face to face or by any other means.
PROPERTY APPLICATIONS
On 12 August 2016 the K property was placed in the wife’s possession after the husband was removed from the property.
The wife is seeking that once the K property is sold, all liabilities and associated costs (pursuant to orders 5 and 6 made on 20 June 2016) be paid out of the proceeds and the balance be paid to her.
The wife seeks that the husband retains his 4WD motor vehicle, some household contents of the K property and his superannuation. She seeks that the parties retain their respective superannuation interests and the wife otherwise receive all of the remaining assets.
The wife seeks a 10 to 15 per cent adjustment based on s 75(2) factors due to her ongoing parenting of the children and the additional costs she incurred for counselling and psychological care for herself and B which she says was a result of the husband’s behaviour.
The orders sought by the wife represent a division of the known property in her favour of approximately 81.2 per cent.
APPROACH
In this matter my task is to:
127.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
127.2.Determine whether it is just and equitable to make an order altering those interests and if so;
127.2.1.Identify relevant contributions and assess them;
127.2.2.Consider relevant matters referred to in s 79(4)(d) – (g) of the Act;
127.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
The schedule of assets, liabilities and their proposed distribution tendered by the wife is set out below (Exhibit 5). The reasons for the adoption for the value of particular items is discussed under item numbers following the table.
Assets
Item no.
Title
Description
Value
1
D Street, Suburb K
$1,600,000
2
H
4WD
$40,000
3
W
Motorcycle 1
$35,000
4
W
Motorcycle 2
$35,000
5
W
The Utility
$120,000
6
W
2 Go Carts & trailer
$45,000
7
W
Motor vehicle 1
$15,000
8
W
CBA …09
$515
9
J
Jt CBA accounts …75, …45 & …38
$522
10
W
Wife's home contents
$12,475
11
H
Husband's home contents
$166,000
12
Home contents to be sold
$9,750
13
Net proceeds of sale of D Street
$166,646
14
W
J Super
$67,441
Total assets
$2,313,349
Liabilities
Item no.
Title
Description
Value
15
CBA home loan
$982,409
16
CBA business overdraft
$177,926
17
F Council rates
$4,157
18
Company I
$4,409
19
Company H
$3,246
20
W
CBA credit card
$7,100
21
H
Credit card
$41,682
22
Outstanding school fees
$10,000
23
W
Loan from Ms L
$21,000
24
Agent's commission
$35,200
25
W
Legal fees
$113,000
26
ATO
$35,975
Total liabilities
$1,436,104
Total net assets
$877,245
The K Property
The K property is owned jointly by the parties and has an estimated value of $1,600,000. It is subject to a mortgage in favour of the CBA which secures two separate facilities: the Commonwealth Home Loan and the business overdraft account (both of which are in default). CBA commenced proceedings against the parties in April 2016 enforcing their security and forcing a sale of the K property. The wife’s solicitors have negotiated with CBA in respect of them not taking possession of the property and to allow the wife to sell the property privately.
Upon the sale of the K property the wife proposes to pay all outstanding liabilities from the proceeds of sale and retain the remaining amount.
Motor vehicles
The wife says that since gaining possession of the K property, the husband has left all the vehicles except the Utility but the keys to the Motorcycle 2 were missing. After engaging a lock smith to open three safes, the keys were located with several hundred dollars. She has not yet paid the locksmith.
The wife has not undertaken formal valuations for the vehicles. The wife valued all motor vehicles (including motorbikes) using Redbook valuations of similar vehicles.
The wife currently has no access to the 4WD motor vehicle. She says if the husband does not pay his fine for breaching the AVO the registration on the 4WD will be suspended again (she says it previously occurred when the husband was fined for the events that occurred on 14 April 2015).
The wife says the Motor vehicle 1 was previously registered in her name but is now unregistered.
Home Contents
Since obtaining possession of the K property the wife has attempted to take inventory of all of the household contents and obtain estimate values. She has obtained values for household contents using her own knowledge of what they were purchased for and researching what they would sell for second hand today. In her oral evidence she said that some items still had price tags on the back. For other items such as pictures, she found a business card on one picture which had the price it was sold for and the wife added a small amount to the value of that picture to cover the cost of the frame. For items such as the new speakers purchased by the husband she obtained their value by researching their worth on the internet.
The husband has not seen particular estimates for some of the household contents as the wife says she did not know about some of the contents until she gained access to the K property. The wife says that the husband had purchased additional items since she left their home in August 2014. The wife suggested that the husband may have purchased these items from the proceeds of the sale of stock from Company M.
The wife seeks that some of the household contents purchased by the husband’s business be transferred to her. She also seeks that some household contents be included in the sale of the K property.
A schedule of the household contents which the wife seeks each party to receive with their respective values is set out in Schedule 2.
Crystals
In her oral evidence the wife said that the husband had purchased a large number of crystals since she left the K property. She suggested that the husband had purchased the crystals from a friend who owned a shop that sold crystals in Suburb U which was going bankrupt and that the husband had bought the items to help out the friend.
The wife has not had time to obtain formal valuations for the crystals but has located similar crystals on the internet to obtain their value. One crystal had a price tag on the back of it for $100. Through this research the wife has discovered that some of the crystals bought by the husband are not easily sourced. The largest crystal weighs over 50 kilograms. In oral evidence the wife said that the value of some crystals may be in excess of $30,000 and others in excess of $1,000. She estimates the total value of the collection at $60,000.
Superannuation
The wife annexes to her affidavit an account balance of her superannuation with J Super of $67,440.97 as at 14 September 2016.
The wife does not know the value of the husband’s superannuation. It is likely the husband’s superannuation could be the same value as the wife’s given they both received superannuation from the family service station business.
Liabilities
ATO
The wife was informed by her accountant that the ATO has indicated that at least six BAS statements have not been lodged by the husband in connection with the Company M business.
On 1 May 2016 the wife telephoned the ATO to discuss the outstanding tax liability. She was advised that they could not issue a notice of liability unless the outstanding BAS statements were lodged and that penalties and interest would be applied to outstanding GST if paid late. On 22 July 2016 the wife received a letter from the ATO with a payment schedule. On 11 August 2016 the wife’s solicitor sent a letter to the ATO in respect of the tax debt and sought an estimate to be raised. On 15 September 2016 the wife’s solicitor showed her a letter from the ATO with an “estimate of an estimate” of $35,975.
The wife’s outstanding debt to her lawyers
The wife has made the unusual application for an order that the debt that she currently owes her current lawyers be paid from the proceeds of the sale of the matrimonial home prior to her receiving the net balance of the proceeds of the home. It would of course be usual for a separate costs order to be made rather than making such an order as part of an order being made under s 79 of the Act. Whilst an indemnity costs order is confined to extremely rare situations, what the wife is seeking in this case is for that debt to be taken into account as part of the overall consideration as to what might be a just and equitable division of assets between the parties. The costs have been incurred primarily in the context of enforcement proceedings and in particular, in circumstances where the husband has failed to engage in the litigation and has disregarded enforcement orders to the extent that a writ of possession had to be issued to get him to leave the former matrimonial home.
Whilst the wife’s application for the payment of this debt is framed in terms of her receiving an indemnity for her costs, she would, in my view, have been entitled to a property settlement order that was at least $113,000 more than she is getting if this debt had been excluded from the net property pool and she had been left with the liability. It is convenient in the circumstances of this undefended hearing, to deal with this debt in the way that the wife has sought in the orders proposed by her.
WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE
The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities.
I find that in all the circumstances, it is just and equitable to make an order altering property.
CONTRIBUTIONS
Initial Contributions
The wife says that she made almost all of the initial financial contributions to the marriage.
The wife says that the Suburb O property was purchased using the insurance payout she received following the death of her first husband. She says the proceeds of sale of the Suburb O property were applied to purchase the K property.
At the time of cohabitation, the wife says she had no liabilities and had the following assets:
151.1.The Suburb E property (unencumbered) with an estimated value of $430,000;
151.2.Savings of approximately $10,000;
151.3.A motor vehicle worth approximately $20,000;
151.4.Furniture and personal effects worth approximately $20,000; and
151.5.Superannuation of about $5,000.
The wife says at the time of cohabitation the husband had the following assets:
152.1.A bedroom suite worth about $5,000;
152.2.A stereo system worth about $5,000; and
152.3.Nominal superannuation.
Shortly after cohabitation, the husband borrowed $60,000 to commence to operate the Company M.
Financial Contributions
The wife obtained her Certificate III in about 1997. In 1998 the wife commenced working. She ceased working when the husband’s business started to perform well.
After leaving school the husband became an apprentice. After completing his apprenticeship, he obtained a position with Company V in Suburb U. Between 25 May 2000 and 30 June 2011 the husband operated a business at the paternal grandfather’s commercial property in Suburb W. From 1 July 2011 the husband operated the business by way of a partnership with the wife. The business ceased trading in about December 2014 and it has no current value.
The wife concedes that the parties’ financial contributions during the marriage were equal.
In 2013 the wife’s taxable income was $105,140 (derived almost exclusively from the husband’s business). The husband’s was $110,000.
In 2014 the wife’s taxable income was $90,145(derived almost exclusively from the husband’s business). The husband’s was $90,000.
In 2015 the wife’s taxable income was $42,086 (derived almost exclusively from the wife’s employment as an administration assistant).
Non-Financial Contributions
The wife’s non-financial contributions were significantly greater than the husband’s. The wife was the children’s primary carer and homemaker during the parties’ marriage and has been solely responsible for their care since the parties’ separation.
From the commencement of cohabitation, the husband did not assist with the housework. The wife attended to preparing meals and the housework for the parties and care for the children (although the wife does concede that the husband did sometimes cook a barbeque when they entertained and assisted with feeding B some mornings when she was weaned and attended one or two school assemblies). The wife did the majority of school drop offs and pick-ups during the parties’ relationship. The wife says that the husband more actively assisted in the care of C.
After B’s birth, the husband operated the family business. It was open seven days a week from 5.30am to 8.30pm. In the wife’s affidavit she says:
134. Even with 2 children, [the husband] continued to party frequently. I remember driving to events with the Children and leaving early with them so that I could get them to bed. [The husband] would invariably continue at the party until late and if he arrived home, he would be under the effects of alcohol.
Post Separation Contributions
Since separation the children have been in the wife’s sole care. The husband has made nominal post-separation contributions in the role of parent. Early after their separation the husband provided the wife with some money but since November 2015 she has not received any financial support from him. Since then the husband has not paid child support or contributed to the children’s education, welfare and advancement.
The husband closed down the Company M business in February 2015. The proceeds of the final sale of fuel were not applied to pay taxation or other debts of the family business or the marriage.
Since separation the wife says that instalments on the Commonwealth Home Loan have not been paid. She has also paid the insurance on the 4WD motor vehicle. She has borrowed money from the husband’s father to continue paying the home and contents insurance on the K property. The husband’s father has advanced the wife $10,000 and while they have not discussed the matter, the wife understands she will be required to pay him back.
As a result of damage to the K property, the wife lodged a claim with X Insurance. They have offered to settle the claim for $23,000. The wife is undertaking work to the roof, replacing glass tables and painting costing $20,500.
Waste
Counsel for the wife relies upon the well-known statement by Justice Baker in Kowaliw & Kowaliw (1981) FLC 91-092:
Financial loss incurred by the parties … in the course of the marriage … should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
The husband has engaged in conduct resulting in waste. The husband unilaterally closed down the family business and sold the remaining stock at a heavily discounted price. The husband used some of these monies to buy the chattels the wife has catalogued. The wife has not quantified the loss incurred by what the husband has done.
The husband has not worked since the parties’ separation and has not paid any child support or provided any financial contributions towards the wife or children. The wife says that the husband’s non-payment has resulted in negative contributions post-separation.
Conclusion on contributions
Based upon the respective contributions of the parties, their known assets should be divided 65/35 in favour of the wife.
FUTURE NEEDS – SECTION 79(4)(d) - (g) MATTERS
There is no evidence that the husband has worked since separation. No financial disclosure has been received from the husband and his current financial circumstances are unknown.
The husband has failed to make full and frank disclosure which has made it impossible for the court to accurately identify his assets including his superannuation and consequently the asset pool (Black & Kellner (1992) FLC 92-287).
Counsel for the wife submits that there has been no disclosure or participation by the husband and relies on Weir & Weir (1993) FLC 92-338 where the Full Court said:
once it has been established that there has been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party.
…
the Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that a party has not made a full disclosure of his or her assets.
Since the parties’ separation, the wife has not received any child support and it is unlikely that she will receive any child support from the husband in the foreseeable future.
Since separation the wife has no longer been employed by the family business. She has only been able to find casual employment as an administration assistant. The wife is employed part time and receives an average weekly income of $318. Between 7 April 2016 and 23 August 2016 her gross income from this employment was $6,700. She also receives the supporting parents benefit, Family Tax and B and rent assistance.
The wife says that she is no longer qualified to return to her previous employment because she would have to re-qualify. She says as a result of her only being able to find low-paying casual employment, she has not been able to pay rent and expenses on her current accommodation and has continued to pay for expenses such as insurance on the K property. She has also had to spend a significant amount of time liaising with creditors because the husband refuses to respond to letters that have been posted to him. She does not receive any child support from the husband.
The wife is unable to afford the children’s school fees but has commenced discussions with B’s school principal to allow her to continue to attend until the end of Year 12. Upon B’s entry to Year 11 the wife anticipates making an application for an exemption of fees for financial hardship.
The wife has ongoing issues resulting from the family violence she experienced.
B requires ongoing counselling. She has experienced bullying at school since primary school. She has seen various counsellors for anxiety. She has been prescribed medication for depression and insomnia but in a recent consultation with her GP B decided not to continue taking the medication. The wife says she has been informed by B’s counsellors that her experiences with the husband have contributed to her anxiety and depressive episodes.
I take into account that the wife’s debt to her lawyers has been accounted for by paying it out of the net proceeds of the sale of the home. She would have otherwise been entitled to (in the circumstances of this case) a greater adjustment in her favour because of that outstanding debt or alternatively a costs order in her favour. I have made the order relevant to this debt in the form proposed by the wife.
Conclusion as to s 79(4)(d) – (g) matters
The wife has sought an overall adjustment of 81.2 per cent which means that she would ask for a further adjustment of 16.2 per cent in her favour for s 79(4)(d) – (g) matters. She is comfortably entitled to that.
JUST AND EQUITABLE
Based upon my findings as to contributions and s 79(4)(d) – (g) matters, I find the net assets should be divided 81.2/18.8 per cent in the wife’s favour. That percentage could be achieved by the division of net assets between the parties as set out in the following table:
Assets
Item No.
Description
Value
2
4WD
$40,000
11
Husband's home contents
$166,000
Liabilities
Item No.
Description
Value
21
Credit card
$41,682
Net Assets
$164,318
Assets
Item No.
Description
Value
1
D Street, Suburb K
$1,600,000
3
Motorcycle 1
$35,000
4
Motorcycle 2
$35,000
5
The Utility
$120,000
6
2 Go Carts & trailer
$45,000
7
Motor vehicle 1
$15,000
8
CBA …09
$515
9
Jt CBA accounts …75, …45 & …38
$522
10
Wife's home contents
$12,475
12
Home contents to be sold
$9,750
13
Net proceeds of sale of D Street
$166,646
14
J Super
$67,441
Liabilities
Item No.
Description
Value
15
CBA home loan
$982,409
16
CBA business overdraft
$177,926
17
F Council rates
$4,157
18
Company I
$4,409
19
Company H
$3,246
20
CBA credit card
$7,100
22
Outstanding school fees
$10,000
23
Loan from Ms L
$21,000
24
Agent's commission
$35,200
25
Legal fees
$113,000
26
ATO
$35,975
Net Assets
$712,927
Standing back I consider that distribution of assets and liabilities to be just and equitable.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 September 2017.
Associate:
Date: 21.9.2017
SCHEDULE 1
Parenting
Order that the Applicant/Wife (the “Wife”) has sole parental responsibility for the children of the marriage, namely:
1.1B born … 2000 (“B”); and
1.2C born … 2009 (“C”).
("the Children").
Order that the Children live with the Wife.
Order that the Respondent/ Husband (the “Husband”) shall spend no time with the Children unless there is a further order that allows him to do so or there is written agreement of the Wife that he do so and provided that, pending further order or agreement, that time be under supervision at an authorised contact centre.
Property
Notation that the husband has not complied with Order 1.3 made 23 May 2016 and Order that orders 1.3, 1.4 and 1.5 made 23 May 2016 are confirmed.
Notation that:
5.1‘Business Overdraft Account’ refers to the CBA overdraft cheque account No. … in the sole name of the Husband and of which the Wife is Guarantor;
5.2‘CBA’ refers to the Commonwealth Bank of Australia;
5.3‘Commonwealth Home Loan’ refers to CBA loan account No. … in the joint names of the parties; and
5.4“Home” means the property at D Street, Suburb K in the state of New South Wales being the whole of the land and Certificate of Title folio identifier … and no…;
Order that order 1 made 20 June 2016 is confirmed and that the Wife is to continue to have the sole conduct of the sale of the Home.
Order if the Home is sold pursuant to these orders by public auction:
7.1the costs of the auction shall be part of the costs of the sale and shall initially paid by the wife; and
7.2each of the parties shall have the right to bid at the auction sale.
Order that upon settlement of the sale of the Home pursuant to these orders the parties shall do all acts and execute all documents that may be reasonably necessary to cause the proceeds of the sale to be distributed in the following manner and priority:
8.1to pay the reasonable expenses of the sale including the agent’s commission, legal costs and disbursements;
8.2to pay rate adjustments;
8.3to pay the balance then outstanding on the:
8.3.1Commonwealth Home Loan;
8.3.2Commonwealth Overdraft Account;
8.4to discharge Registered Mortgage No. … to the Commonwealth Bank of Australia which is presently secured upon the Home; and
8.5to pay in respect of the Home:
8.5.1rates arrears payable to the F Council;
8.5.2water charges arrears payable to G Water;
8.6to pay to the Australian Commissioner of Taxation the sum of $35,975.00 on behalf of the Mr Cawte & Ms Cawte ABN ... on account of an estimate of unpaid GST;
8.7to pay Company H a sum not exceeding $3,246.10 towards account number 893 713 967 in the sole name of the Husband;
8.8to pay Company I a sum not exceeding $4,409.45 towards account number 7008 513 611 in the sole name of the Husband;
8.9to pay CBA a sum not exceeding $41,681.94 towards the Husband’s credit card number …;
8.10to reimburse the Wife for any payment made by her due to the Husband’s failure to comply with Order 12, and with any previous orders made in these proceedings including all of her legal costs to 16 September 2016 on an indemnity basis not to exceed the sum of $101,593.50.
8.11to pay the balance then remaining to the Wife.
Order that until completion of a sale of the Home pursuant to these orders the Wife shall have the right to occupy the Home (to the exclusion of the Husband).
Order that until completion of a sale of the Home pursuant to these orders the Husband shall continue to make the following payments as they fall due:
10.1all mortgage instalments in respect of the Commonwealth Home Loan;
10.2all loan instalments in respect of the Business Overdraft Account; and
10.3council and water rate instalments.
Order that within 14 days of the date of these orders, the Husband do all acts and execute all documents as may be reasonably necessary to transfer to the Wife the whole of his right, title and interest in:
11.1Commonwealth Bank of Australia account numbers …75, …45, and …38 currently in the joint names of the parties; and
11.2the items in Schedule ‘A’ including any assets belonging to the business operated by Mr Cawte & Ms Cawte ABN ....
Order that until completion of a sale of the Home pursuant to these orders the Wife shall continue to make payment as it falls due in respect of the costs of all services supplied including accounts for household building and contents insurances, electricity, telephone and gas usage.
Order that the Husband shall indemnify the Wife and keep her indemnified against any further liability for outgoings in respect of interest, fees (including legal fees) and her costs associated with complying with the guarantee she provided in relation to the Business Overdraft Account where such charges cause the balance then outstanding to the Commonwealth Bank of Australia to exceed $165,682.77.
Order that each of the parties shall produce and execute all documents and instruments and do all other acts and things as may be reasonably necessary to give effect to these orders.
Order that the Husband collect the items listed in Schedule ‘B’ from the Home within 14 days of these Orders.
Order that if the Husband does not comply with Order 15, the Wife shall be at liberty to dispose of the items and shall:
16.1deduct her reasonable costs of storing and/or disposing of them; and
16.2either:
16.2.1pay the net proceeds of the disposal to the Husband or as he directs; or
16.2.2in the event that the Husband fails to direct how he is to be paid within 14 days of a request, she shall cause the net proceeds of the disposal (if any) to be invested with the Public Trustee in the sole name of the Husband.
Declare that the Husband has no interest in the Wife’s:
17.1interest in member number … with J Super;
17.2Motor vehicle 1; and
17.3CBA account number …09.
Order that if either of the parties fails, refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these orders a Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party and to do all acts and things necessary to give validity and operation to the deed or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Order that the Wife is granted leave to provide a copy of these orders to:
19.1G Shire Council;
19.2The Commonwealth Bank of Australia;
19.3The Australian Taxation Office.
or their authorised legal representative.
Schedule ‘A’ – To be Retained by Wife
Motorcycle 1
Motorcycle 2
Utility
2 Go Carts & trailer
Original photograph 1
Miscellaneous personal effects (from my current home)
Motorcycle 3
Round mat
Washing Machine
4 Blenders
Timber speakers
Home guard safe
Timber chairs (x2)
Dishwasher
TV
Blue Ray Player
Square mirror (blue and beige)
AV Receiver (VSX 922)
Stools (x4) and cushions
C’s cot and change table
Black metal frame bedhead and mattress
Bedside table (x2)
Original canvas
Wooden Picture
Tripod chrome floor lamp
Picture (Horse)
Canvas pictures (x 3)
Framed Pictures:
Original photo 2
Autographed jersey
Autographed sportsman photo 1
Autographed celebrity photo
Autographed sportsman photo 2
Original photo 3
10 Indian commandments
Autographed sportsman photo 3
Assorted pictures
Assorted Car and Motorcycle Equipment
Motorcycle 1` Exhaust
Go-cart tyres brand new (x12)
2 & 3 seat leather recliners and lounge furniture
6 seat dining set with matching corner lounge,
coffee table, TV stand and buffet
Wall mounted display screen
Roof mounted video projector
2 Bean Bags
Microwave
Schedule ‘B’ – To be Retained by Husband
4WD (“4WD”)
Miscellaneous crystals
Home Entertainment & Electrical
Audio & Hi Fi Equipment
Assorted pornography (DVDs and Magazines)
6 Televisions
Lighting Equipment
Telescope and tripod
5 Extra large speakers
Computers and Printers
DJ soundboard
Musical Instruments
Mighty pounder realistic sex toys (x5)
Assorted Statues
Various Egyptian Figures (x5)
Goddesses & Angels (x2)
Fossil
Pharoah (x4)
Buddas (golden & black)
Replica of David
Globe
Eagle
Elephant (x3)
Atlas
Bamboo fountain
Sporting Equipment
Golfing equipment (buggies, bag & clubs)
Assorted sporting equipment
2 Sailboards
work out bench
2 Surfboards
rowing machine
Single ski
Men’s mountain bike
Treadmill
Kite board
Full set of weights
chin up bar
Boxing bag & gloves
6 Life jackets
Rackets - Tennis and squash
Smooth star skate board
Exercise bike
Assorted Furniture
Home Appliances and Whitegoods
Bedroom Furniture
Wooden TV Cabinet
U shaped office desk
Miscellaneous contents
Black leather bar stools (x6)
Electric heater
Balinese cushions (x5)
Assorted mats and rugs
office chairs (x 4)
Timber buffet
Leather HPF Massage table
Eight seat table
Round table
Timber seat (shaped like hand)
Assorted Ottomans (x7)
Black mirror
Wooden tribal mask
Three basket storage (white)
Four cube storage cabinet
Egyptian Themed Items
Egyptian display cupboard & contents
Egyptian plates (x4)
Egyptian chess board and pieces
Egyptian bowls (x5)
Outdoor and Camping Equipment
3 gas heaters
Camping fridge and freezer
Assorted camping gear
31 car chargers
22 Outdoor chairs
Assorted Car and Motorcycle Equipment
Assorted car speakers and sound systems
Assorted maintenance and cleaning products
Motorcycle clothing & helmets
Assorted petrol and oil
Mag Wheels and tyres (x3)
Outdoor Appliances
Assorted gardening tools and equipment
Mower
Whipper snipper
Wheel barrow
Tools and Equipment
Blue petrol generator
Assorted power tools
Red mechanics tool box
Black mechanics tool box
Mechanics under-car trolley
Red rotor tool box
Trailer storage box
Extension ladder
Blue industrial fan
SCHEDULE 2
Household contents to be retained by the wife
Original photograph E$3,000
Miscellaneous personal effects (from the wife’s current home) E$2,000
Motor Bike 3 (belongs to B) E$1,000
Round mat E$1,000
Washing Machine E$500
4 Blenders E$500
Timber speakers E$500
Home guard safe E$500
Timber chairs (x2) E$400
10.Dishwasher E$400
11.TV E$400
12.Blue Ray Player E$300
13.Square mirror (blue and beige) E$300
14.AV Receiver E$250
15.Stools (x4) and cushions E$200
16.C’s cot and change table E$200
17.Black metal frame bedhead and mattress E$200
18.Bedside table (x2) E$160
19.Original canvas E$150
20.Wooden Picture E$80
21.Tripod chrome floor lamp E$55
22.Canvas pictures (x3) E$30
Total: E$12,475
Household contents to be retained by the husband
Miscellaneous crystals E$60,000
Home Entertainment & Electrical E$27,485
a.Audio & Hi Fi Equipment E$8,100
b.Assorted pornography (DVDs and Magazines) E$5,000
c.6 Televisions E$2,800
d.Lighting Equipment E$3,500
e.Telescope and tripod E$2,000
f.5 Extra large E$2,000
g.Computers and Printers E$1,610
h.DJ soundboard E$1,500
i.Musical Instruments E$750
j.5 realistic sex toys E$225
Assorted Statues E$5,490
a.Various Egyptian Figures (x5) E$1,900
b.Goddesses & Angels (x2) E$930
c.Fossil E$500
d.Pharaoh (x4) E$350
e.Buddas (golden & black) E$330
f.Replica of David E$300
g.Globe E$300
h.Eagle E$250
i.Elephant (x3) E$280
j.Atlas E$150
k.Bamboo fountain E$200
Sporting Equipment E$10,430
a.Golfing equipment (buggies, bag & clubs) E$1,700
b.Assorted sporting equipment E$1,300
c.2 Sailboards E$1,200
d.Work out bench E$900
e.2 Surfboards E$600
f.Rowing machine E$600
g.Single ski E$550
h.Men’s mountain bike E$500
i.Treadmill E$450
j.Kite board E$400
k.Full set of weights E$400
l.Chin up bar E$350
m.Boxing bag & gloves E$350
n.6 Life jackets E$300
o.Racks Tennis and squash E$300
p.Smooth star skate board E$330
q.Exercise bike E$200
Assorted furniture E$21,115
a.Home Appliances and Whitegoods E$3,350
b.Bedroom Furniture E$2,900
c.Wooden TV Cabinet E$2,700
d.U shaped office desk E$2,000
e.Miscellaneous contents E$1,355
f.Black leather bar stools (x6) E$1,200
g.Electric heater E$1,000
h.Balinese cushions (x5) E$1,000
i.Assorted mats and rugs E$1,080
j.Office chairs (x4) E$760
k.Timber buffet E$700
l.Leather HPF Massage table E$600
m.Eight seat table E$500
n.Round table E$400
o.Timber seat (shaped like hand) E$380
p.Assorted Ottomans (x7) E$380
q.Black mirror E$300
r.Wooden tribal mask E$280
s.Three basket storage (white) E$200
t.Four cube storage unit E$100
Egyptian Themed Items E$3,950
a.Egyptian display cupboard & Contents E$3,500+
b.Egyptian plates (x4) E$200
c.Egyptian chess board and pieces E$150
d.Egyptian bowls (x5) E$100
Outdoor and Camping Equipment E$8,770
a.3 gas heaters E$4,500
b.Camping fridge and freezer E$1,200
c.Assorted camping gear E$1,950
d.31 car chargers E$620
e.22 Outdoor chairs E$500
Assorted Car and Motorcycle Equipment E$9,500
a.Assorted car speakers and sound systems E$3,000+
b.Assorted maintenance and cleaning products E$2,000
c.Motorcycle clothing & helmets E$1,800+
d.Assorted petrol and oil E$1,500
e.Mag Wheels and tyres (x3) E$1,200
Outdoor Appliances E$2,000
a.Assorted gardening tools and equipment E$1,000+
b.Mower E$600
c.Whipper snipper E$300
d.Wheel barrow E$100
10.Tools and Equipment E$8,550
a.Blue petrol generator E$2,000
b.Assorted power tools E$2,000
c.Red mechanics tool box E$2,000
d.Black mechanics tool box E$800
e.Mechanics under-car trolley E$500
f.Red rotor tool box E$500
g.Trailer storage box E$300
h.Extension ladder E$250
i.Blue industrial fan E$200
Items purchased by funds generated from the business to be retained by the wife
Framed Pictures E$8,060
a.Original photo 1 E$6,000
b.Autographed jersey E$400
c.Autographed sportsman photo E$400
d.Autographed celebrity photo E$300
e.Autographed sportsman photo E$250
f.Original photo 2 E$250
g.10 Indian commandments E$250
h.Autographed sportsman photo E$150
i.Assorted pictures E$60
Assorted Car and Motorcycle Equipment E$750
a.Motorcycle 1 Exhaust E$600
b.Go-cart tyres brand new (x12) E$150
Items to be sold with the K property E$9,750
2 & 3 seat leather recliners and lounge furniture E$6,000
6 seat dining set with matching corner lounge,
coffee table, TV stand and buffet E$2,000
Wall mounted display screen E$1,000
Roof mounted video projector E$500
2 Bean Bags E$400
Microwave E$350
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Remedies
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Procedural Fairness
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