Cowan & Braun (No 2)
[2024] FedCFamC1F 745
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cowan & Braun (No 2) [2024] FedCFamC1F 745
File number: NCC 1480 of 2022 Judgment of: HARTNETT J Date of judgment: 6 November 2024 Catchwords: FAMILY LAW – PROPERTY – De Facto Relationship –Where a child of the relationship lives with the wife and spends no time with the husband – Where there is a family trust that owned two properties with the applicant, the first respondent and the third respondent having an interest and/or entitlement in respect of the trust – Where the applicant seeks to wind up the trust and pay out all liabilities from the trust – Where the first respondent and the third respondent did not participate in the trial – Where the applicant has experienced extensive and serious family violence – Where the second respondent intervenor seeks repayment of a litigation loan incurred by the first respondent –– Where the litigation funder’s claim to priority when considering the competing claims of the applicant and first respondent is not accepted - Where the application of the applicant succeeds. Legislation: Family Law Act 1975 (Cth) Parts VIII, VIIIAB, ss 90SF, 90SM, 102NA, 117
Personal Property Securities Act 2009 (Cth) s 128
Cases cited: Chorn & Hopkins (2004) FLC 93-204
Jabour & Jabour (2019) FLC 93-898
Keating & Keating (2019) FLC 93-894
Mallet v Mallet (1984) 156 CLR 605
Stanford v Stanford (2012) 247 CLR 108
Williams v Williams (1985) FLC 91-628
Division: Division 1 First Instance Number of paragraphs: 174 Date of hearing: 8 October 2024 Place: Melbourne, via videolink Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Lucy Urach & Associates The First Respondent: No appearance Counsel for the Second Respondent: Mr Bennett Solicitor for the Second Respondent: GG Limited The Third Respondent: No appearance ORDERS
NCC 1480 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COWAN
Applicant
AND: MR BRAUN
First Respondent
GG LIMITED
Second Respondent
MS N
Third Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The first respondent be removed as the guardian of the Braun Family Trust (“the Trust”).
2.The applicant be appointed as the guardian of the Trust.
3.The first respondent is restrained from:
(a)removing the applicant as the guardian of the Trust.
(b)removing the applicant as the trustee of the Trust.
4.The applicant, in her capacity as Trustee of the Trust, as soon as is practicable, shall cause to be paid from the funds held on trust by the solicitor for the applicant, being funds of the Trust, the following amounts in the following order of priority:
(a)$119,308 to the applicant’s father, Mr KK, in full satisfaction of any and all alleged amounts owing to either Mr KK and/or, LL Pty Ltd, and/or, MM Pty Ltd by the Trust, and/or, the first respondent, and/or the third respondent and the applicant will indemnify the trust, and/or the first respondent and/or the third respondent against any and all claims that Mr KK, and/or, LL Pty Ltd, and/or, MM Pty Ltd has against the Trust, and/or the first respondent, and/or the third respondent.
(b)any Capital Gains Tax liability arising from the sale of DD Street, Town EE (…) and HH Street, Suburb JJ (…).
(c)$115,000 to the second respondent, being GG Limited, on behalf of the first respondent.
(d)costs associated with winding up the Braun Family Trust.
(e)the balance remaining to be distributed as follows:
(i)32% to the third respondent to be classified as repayment in full of the beneficiary loan account of Ms N; and
(ii)68% to the applicant.
5.The applicant, in her capacity as trustee of the Trust, shall do all such acts and things including but not limited to passing all Resolutions that are required to wind-up the Trust.
6.The parties shall indemnify and keep indemnified the other parties against:
(a)all debts, liabilities and outgoings jointly incurred by the parties or by or on behalf of the entities, including any assessment for taxation, primary or provisional, and interest penalties and costs thereon up to the date of these orders;
(b)all or any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity either now or at any time in the future against the parties or which may arise in respect of any act or thing done or omitted to be done by the parties up to and including the date of making of these orders whether by reason of the parties having been an employee and/or director and/or officer of any one or all of the entities and/or by reason of shareholding within any one or all of the entities and/or any loan account in name and/or the receipt by the parties of any money at any time from the entities or otherwise.
7.Unless otherwise specified in these orders, and except for the purpose of enforcing payment of any money due under these or any subsequent orders:
(a)each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these orders including any jewellery, furniture, furnishings and motor vehicles;
(b)moneys standing to the credit of the parties in any bank accounts to be the money of the party in whose name such bank account is held; and
(c)each party foregoes any claims they may have to any superannuation benefit to or owed by the other. The party in whose name any such policy of superannuation or insurances stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
8.In the event that either party refuses or neglects to sign any document or documents required to give effect to these orders within 14 days of a written request to do so then, pursuant to s 106A of the Family Law Act 1975 (Cth) the Registrar of the Registry of the Federal Circuit and Family Court of Australia is hereby appointed to sign any such documents on behalf of the defaulting party.
9.Otherwise, all extant applications be dismissed and the matter be removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cowan & Braun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This proceeding was before the Court pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), being a financial matter relating to the de facto relationship of the applicant de facto wife (“the wife”) and the first respondent de facto husband (“the husband”). Following the commencement of the proceeding, further parties were joined, namely the second respondent, GG Limited (“GG Limited”), and the third respondent Ms N (“the third respondent”). GG Limited was joined to the proceeding by Orders made 3 April 2023, and the third respondent was joined to the proceeding by Orders made 4 August 2022, being an order by consent. GG Limited is a litigation funder of the husband, and the third respondent is the mother of the husband.
At trial, as represented by counsel, the wife sought final property orders in accordance with her Amended Application for Final Orders filed 2 September 2024, paragraphs 1 through to 8.
At trial, there was no appearance by the husband. The Court is satisfied that he had every opportunity to participate in the proceeding, was aware of the trial date, and had been served with the wife’s material and that of GG Limited. The husband sought no orders in the proceeding, which had commenced on 27 May 2022, with the wife filing her Initiating Application for parenting orders and de facto property orders. The husband filed no material in the two and a half years over which the matter proceeded.
At trial, as represented by counsel, GG Limited, the litigation funder intervenor to whom the husband is indebted, sought orders that the intervenor be paid as a priority out of funds the subject of the dispute between the “active parties”. Those funds were identified by GG Limited to be $1,248,594, as held in the trust account of the wife’s lawyer. A claim had been made in respect of those funds by the wife and the third respondent. GG Limited sought payment to it of $178,683.88. In the alternative, GG Limited sought that the claim made by GG Limited be paid out of any entitlement to be received by the husband, before such monies were paid to the husband.
At trial, there was no appearance by the third respondent. The third respondent had filed an affidavit and Response to Final Orders on 21 September 2022, as subsequently amended by an Amended Response to Final Orders filed 15 March 2024. In that Amended Response, the third respondent sought a declaration that the Braun Family Trust held the proceeds of sale of the properties known as and situate at DD Street, Town EE in the State of NSW(“the Town EE property”) and HH Street, Suburb JJ in the State of NSW (“the Suburb JJ property”) on trust for the third respondent to the extent to which the third respondent had contributed toward the properties the sum of $894,527.12 and orders, relevantly that:
1.… within 14 days of the date of these Orders the Applicant, as trustee of the [Braun Family Trust] shall do all acts and sign all documents necessary to cause to be paid to the Third Respondent, or as she directs, the sum of $894,527.12.
IN THE ALTERNATIVE TO ORDER 1
2.That within 14 days of the date of these Orders the Applicant and Respondent shall do all acts and sign all documents necessary to cause to be paid to the Third Respondent, or as she directs, the sum of $894,527.12, by way of equitable damages.
On 4 October 2023, the third respondent filed a Notice of Discontinuance of her Response to Initiating Application filed 21 September 2022. The third respondent thereafter filed an Amended Application in a Proceeding on 20 February 2024, seeking leave to rejoin the proceeding. In an affidavit filed by her, the third respondent deposed to her seeking to rejoin the proceeding because her son, the husband, was “back in custody – he has had some (another) mental health episode”.[1] The third respondent did not believe the husband, at that time, had “...the capacity to represent himself in this matter”.[2]
[1] Third Respondent’s affidavit filed 12 December 2023, paragraph 9.
[2] Third Respondent’s affidavit filed 12 December 2023, paragraph 11.
Following the filing, by her previous lawyers, of her Amended Response to Final Orders on 15 March 2024, the third respondent filed no further material in the proceeding. Her solicitors filed a Notice of Ceasing to Act on 14 June 2024.
The Court is satisfied that the third respondent was aware of the trial date and had been served with the wife’s material and that of GG Limited. Whilst the third respondent had every opportunity to participate in the trial prior to its commencement, I note the proceeding was stood down at commencement for the Court to communicate with the third respondent by email to again invite her to join the Microsoft Teams link to attend the hearing in Melbourne from her home in Western Australia. In the absence of a timely response, the Court proceeded to hear the applications of the wife and GG Limited as undefended by the husband and the third respondent. The Court was mindful of the need to consider the rights of the wife and GG Limited, where the protracted proceeding has had significant adverse impact upon the wife’s mental health as deposed to by Dr NN (“Dr NN”), and to afford procedural fairness to the wife and GG Limited.
The Court notes in respect of service upon the husband and the third respondent of all material filed in the proceeding, that Order 1 of 15 August 2024 had made provision for service on the husband to be affected by personally serving the third respondent at her home at P Street, Suburb Q in the State of Western Australia. Further, that the third respondent was present as a litigant in person on 11 June 2024 when the Court listed the matter for final hearing at 10.00am on 8 October 2024.
Following the conclusion of the hearing and at 5.01pm on 8 October 2024, the third respondent emailed chambers to state the following:
Your Honor
I am not attending the final hearing. I am unwell.
[Ms Cowan] knows the facts.
Over the past months I have emailed [Ms Cowan] and expressed that we have come to an agreement 2 times now in mediation about percentages for me.
This is the only thing I have a lawful right to have input into.
All other information about the family trust is not my business.
Since then her solicitor has changed the goalposts again.
I trust that you can see through and find justice here.
Thank you for your consideration.
[Ms N]
(As per the original)
MATERIAL RELIED UPON
The applicant relied upon:
(1)Amended Application for Final Orders filed 2 September 2024;
(2)her affidavit together with annexures filed 19 September 2024;
(3)affidavit together with annexures of Dr NN filed 2 October 2024;
(4)items tendered in evidence as taken from the wife’s tender bundle; and
(5)Outline of Case filed on 8 October 2024.
GG Limited relied upon:
(1)affidavits of Mr OO together with annexures filed 23 September 2024 and 2 October 2024;
(2)Outline of Case filed 3 October 2024; and
(3)Minute of Order as annexed to the Outline of Case.
The third respondent did not appear to prosecute the orders as sought by her or to challenge the evidence of the wife. The first respondent husband sought no orders and failed to challenge the wife’s material, and that of GG Limited. He failed to appear.
SOME RELEVANT FACTUAL FINDINGS
In 1982, the husband was born. He is aged 42 years.
In 1985, the wife was born. She is aged 39 years.
In 2006, the wife’s now adult child from a previous relationship, B, was born.
In late 2008, the parties commenced living together in a de facto relationship at a property at Suburb E, which was a property in which the wife and the child B were then residing. It was a property owned by the wife’s parents. The wife’s parents allowed the husband and wife to cohabitate in that property. Their occupation was rent free.
In 2009, the parties’ child X was born. He is aged 14 years. The wife remained at home caring for the children for approximately five years. She was the primary carer to the children, albeit assisted in that care by the husband.
In late 2014, the wife commenced to be employed in her father’s business. She was at first employed in maintenance and in 2015, when her Centrelink payments in respect of X ceased, she commenced to be employed in office work in the business. The wife applied all her income, approximately $700 net a week, to the benefit of the family.
The husband, shortly after cohabitation, became unemployed and remained so until around 2016 when the properties referred to below were purchased.
In 2016, the husband received approximately $75,000 from his late father’s estate. The husband directed his inheritance to be deposited into the wife’s PP Bank account. Over time, those monies were applied to the mortgage repayments of the Braun Family Trust(“BFT”) properties, in part the acquisition costs of the properties, and other living expenses of the parties. The husband held the key card linked to the wife’s account and would instruct the wife to transfer money between the wife’s PP Bank account and a PP Bank saver account in her name.
In early 2016, the BFT was established. The third respondent was the appointor and a trustee of the trust. The husband was also a trustee.
In mid-2016, the BFT trust deed was amended to add the wife as a trustee. Subsequently, the BFT trust deed was further amended to remove the third respondent as a trustee of the BFT. The third respondent remained as appointor of the BFT until mid-2020, when the husband became the sole appointor of the BFT.
Up until the establishment of the BFT, the husband and wife had not acquired any real property ownership.
In mid-2016, the BFT purchased the Suburb JJ property for a purchase price of $302,000. The purchase was subject to a registered mortgage held by QQ Financial Services in the sum of $223,000. The property was a sizeable block of land. Monies applied toward the purchase, with an equity of $79,000, were provided by the husband and the third respondent though in what apportionment is not known.
In mid-2016, the BFT purchased the Town EE property for a purchase price of $825,000. That property was also subject to a mortgage held by QQ Financial Services in the sum of $606,154. Two licences attached to that property with a value of $17,000. The third respondent contributed the sum of $165,000 toward the purchase of the property, met the payment of the agent and conveyancer fees, and paid for the licences attached to the Town EE property. The husband and wife, by inference, applied approximately $54,000 to the purchase.
Upon settlement of the purchase of the Town EE property, the third respondent took up occupation of the property. It was her intention to reside there indefinitely. The husband, wife, and their children, continued to live rent free at the Suburb E property.
Following the BFT purchase of the Suburb JJ and Town EE properties, the wife made mortgage repayments of approximately $400 per week and the third respondent made mortgage repayments of approximately $800 per week. The wife’s contributions to those mortgage repayments continued following the parties’ separation in October 2019, through to their resumption of cohabitation following the husband and wife’s reconciliation in early 2021.
In 2018, the children were homeschooled by the wife.
On 26 October 2019, the parties separated for the first time. The wife thereafter commenced to attend upon her psychiatrist, Dr NN, to help her deal with the consequences of being subjected to serious family violence as perpetrated by the husband upon her and the children.
On 14 November 2019, the wife commenced proceedings for parenting orders. Both the wife and husband incurred some costs.
In the period of separation between 26 October 2019 and the parties’ reconciliation in early 2021, the children resided with the wife in the Suburb E property. The wife did not receive any child support payments from the husband and was solely responsible for the care and support of both children. The wife was continuing to be in receipt of income from her employment in office work at her father's business. She continued to make weekly cash deposits of $400 toward the mortgages secured by the Suburb JJ and Town EE properties into the BFT bank account with PP Bank.
In mid-2020, the husband and his then solicitor made inquiries of GG Limited in respect of an application for legal finance for the husband.
In mid-2020, the husband applied for a legal finance loan with GG Limited in the sum of $150,000.
In late 2020, the husband and GG Limited entered into a loan contract for a maximum credit of $99,159.40 (“the GG Limited loan”).
A short time later, GG Limited caused a caveat to be lodged over the Town EE property in favour of GG Limited.
In around December 2020, the third respondent ceased making any mortgage repayments in respect of either the Suburb JJ property or the Town EE property (save for a ‘one-off’ payment in October 2021). The wife was not in a financial position to make the entirety of the mortgage repayments as earlier met by her and by the third respondent. The wife had foreseen the difficulties which were then encountered by the parties and had engaged unsuccessfully in lengthy negotiations with the husband and the third respondent to affect a sale of both the Suburb JJ and Town EE properties. The wife continued to make her contribution toward the mortgages out of income received by her.
In early 2021, the husband made an application for additional funds to be advanced under the GG Limited loan.
In February 2021, GG Limited sent to the husband a variation to the GG Limited loan contract, for a maximum amount of credit to be advanced of $154,580.81 (variation contract), which the husband executed on 4 February 2021. The wife had been unaware of its existence at the time of the husband’s execution of the GG Limited loan contract and was unaware of any subsequent variation contract as executed by the husband and GG Limited at the time of execution. She was not a party to either contract.
On 2 February 2021, the wife filed a Notice of Discontinuance of her parenting orders proceeding. The parties reconciled shortly thereafter. The husband told the wife that he would “take care of the mortgage repayments”.[3] The wife stopped making the payments she had previously made. The husband however, made no mortgage repayments.
[3] Wife’s trial affidavit filed 19 September 2024, paragraph 33.
In March 2021, the husband, wife and children travelled to Western Australia. The wife was unaware that in travelling to Western Australia, the husband was in breach of his then parole conditions in respect of outstanding criminal matters faced by the husband.
In mid-2021, the husband was arrested for breach of his parole conditions and remanded in custody. During that time, the wife continued to work for her father in the business and remained so employed until her father’s retirement in 2021.She continued to apply her income for the benefit of the family.
In mid-2021, the wife’s parents loaned the husband and wife $60,000. These monies were placed in a company account under the wife’s control.
Shortly after, a payment of $35,000 (from the moneys advanced by the wife’s parents) was made to the husband’s then lawyers, being lawyers that represented him in his criminal and family law litigation.
Some weeks later, a payment of $1,852.70 (from the monies advanced by the wife’s parents) was made to the husband by the wife.
Five days later, a further sum of $6,000 was paid to the husband’s lawyers with those monies being derived from the GG Limited loan.
From July 2021, the wife utilised the remaining monies loaned by her parents, together with saved income and a long service leave payment, to make contributions to the mortgage repayments. Thereafter, the wife’s parents continued to loan monies to the parties, the majority of which were applied to the mortgages and the conservation and improvement of the BFT properties. A small part of those funds was used to pay for expenses relating to the children or other living expenses. Between August 2021 and December 2021, the wife’s parents advanced a total further loan amount of $20,041.
In early 2022, the wife received correspondence from QQ Financial Services that the mortgage on the Town EE property was in arrears of $4,928.20.
In early 2022, New South Wales Police issued a provisional Apprehended Domestic Violence Order (“ADVO”) against the husband for the wife’s protection.
On 10 January 2022, the parties’ final separation occurred. The parties had been in a de facto relationship for a period of approximately 13 years with a lengthy period of separation between October 2019 and February 2021, and with the husband being incarcerated and otherwise continuing to perpetrate family violence upon the wife following the reconciliation. The wife and children left the Suburb E property as the husband refused to allow them ongoing occupation and the women’s support service, upon whom the wife had attended, had assessed the wife as being at high risk of being harmed by the husband.
A week later the provisional ADVO against the husband was amended to include a clause that restrained the husband from coming within 200 metres of any place the wife lived or worked, including the Suburb E property.
A few weeks later, the husband breached the ADVO and his parole conditions. He drove up to the Suburb E property and walked into the home. The children and wife were in the lounge room watching television. The husband eventually left the property, as requested on several occasions by the wife. The wife’s parents came over to the property and contacted the Police. The husband was subsequently arrested at the Town EE property to which he had returned.
Three days after this, the husband was charged with breach of an ADVO and was subsequently released on bail. Between that time and some two weeks later, the husband engaged in further breaches of the ADVO and was arrested and charged with those further breaches. He was also charged with other offences. His bail was refused, and he was due to appear before a Local Court a few days later.
At that time, the husband was again refused bail and the matter adjourned to mid-2022.
On 27 May 2022, the wife commenced this proceeding in the Federal Circuit and Family Court of Australia (Division 2). She sought both final parenting and property orders. The matter was transferred to the Court by Order made 6 July 2022.
On 4 August 2022, the Court ordered the sale of the Suburb JJ and Town EE properties. Vacant possession was required to be provided to the wife. The third respondent left the property.
In mid-2022, the husband was found guilty of four offences including assault on the wife and breaches of bail. He remained in custody on remand until late 2022 when he was to be sentenced.
In September 2022, the wife’s father paid land tax as owing in respect of the Suburb JJ property and the Town EE property in the amount of $53,768.95. Such payment was a loan to the BFT.
In October 2022, the wife’s parents loaned the BFT a sum of $4,400 to pay for rectification works to the driveway at the Town EE property, with such works being demanded by the third respondent.
By late 2022, the third respondent had attended upon the Town EE property to remove all items of personal and other property as belonging to her in accordance with Orders made 4 August 2022. The third respondent did not however remove all her belongings. Accordingly, the wife’s parents and the wife were required to remove the remaining furniture from the Town EE property and to remove rubbish from the property. The total cost to the wife as loaned to her by her parents, and incurred by reason of the third respondent’s default, was $6,539.50.
In late 2022, the sale of the Suburb JJ property settled with $397,485.16 deposited into the trust account of the solicitor for the wife.
On 10 November 2022, GG Limited received an email from the wife’s solicitors which, amongst other things, requested that the caveat as lodged by GG Limited on the Town EE property be removed so that the sale of the Town EE property could proceed.
In November 2022, the wife was contacted by the local council as to the rates outstanding in respect of the Town EE property being in the sum of $15,234.72. Rate notices had been sent to the husband, who had failed to advise the wife of any outstanding rates or make any payment in respect thereto.
In late 2022, GG Limited caused the caveat to be withdrawn from the Town EE property’s title.
A short time later, the Town EE property was advertised for sale by public auction. Thereafter, the husband was seen at the property, a breach of his parole conditions, and otherwise the husband engaged in destructive behaviours in his attempts to communicate with and intimidate the wife. The wife found the husband’s actions caused her to “feel very hypervigilant to keep my family safe”.[4] In preparing the Town EE property for sale, the wife paid $2,764 to the agent for marketing and photography of the property; $1,402.50 to a company for outdoor work on the Town EE property; and $699 for a building and pest inspection of the Town EE property. All of these funds were advanced by way of loan from the wife’s parents for the benefit of the BFT.
[4] Wife’s trial affidavit filed 19 September 2024, paragraph 127.
In late 2022, the husband was sentenced and released on parole with reporting conditions.
In December 2022, the wife received correspondence from QQ Financial Services which informed her that the mortgage on the Suburb JJ property was in arrears of $3,285.26. The sale of this property had already settled.
In early 2023, while the wife and her mother were doing a clean of the house at the Town EE property for a viewing, the wife found hairs on the floor of the shower and soap on the shower screen. The wife called Community Corrections at 3.00pm and spoke to a parole officer. The parole officer said to her words to the effect of, “You and your mother should leave the property immediately. I was contacted by [Mr Braun] [the husband] this morning, and he told me he was leaving Sydney and could do what he wanted. I am concerned for your safety. Please contact me when you arrive home.”[5]
[5] Wife’s trial affidavit filed 19 September 2024, paragraph 129.
In early 2023, the husband was arrested for breach of parole. He was released into the care of third parties.
In January 2023, GG Limited caused a Personal Property Security Interest to be registered on the Personal Property Securities Register (“PPSR”) on the currency in the wife solicitor’s trust account.
In January 2023, the wife paid $1,002.25 to Water NSW in relation to the Town EE property. This money was again advanced by way of loan from the wife’s parents.
In early 2023, the husband engaged in further acts of family violence against the wife and children, defacing a public sign with the word ‘[…]’ and otherwise using peoples’ names in graffiti as placed by him in several areas, being commonly seen drive-by areas and in the proximity of bus stops.
The following month, the husband was again arrested for breach of parole.
In early 2023, GG Limited issued a default notice to the husband.
In early 2023, contracts were exchanged for the sale of the Town EE property for a sale price of $1.5 million.
In March 2023, GG Limited received an email from the then solicitors acting for the third respondent attaching a joint demand (on behalf of the wife also) for the removal of the PPSR pursuant to s 128 of the Personal Property Securities Act 2009 (Cth). GG Limited thereafter removed their claimed interest from the PPSR.
In early 2023, the sale of the Town EE property settled, whereupon the net proceeds of $794,176.18 were deposited into the trust account of the solicitor for the wife.
In March 2023, the wife received an email from Ms RR from a company acting on behalf of QQ Financial Services. She was informed the amount required for the discharge of the QQ Financial Services loan had been miscalculated at settlement of the sale of the Suburb JJ property and there was a shortfall of $4,015.32. The wife was requested to pay this shortfall. The following day the wife caused her solicitor to respond to the company, noting the net proceeds of sale of the Suburb JJ and Town EE properties had been deposited into her solicitors’ trust account, and there was an order requiring the funds to remain in trust “pending further order or agreement in writing between the Applicant, First Respondent and Second Respondent”.[6]
[6] Wife’s trial affidavit filed 19 September 2024, paragraph 205.
On 11 April 2023, the wife received further correspondence from QQ Financial Services indicating that weekly repayments remained due on the QQ Financial Services loan outstanding.
On 14 April 2023, the wife received correspondence from the third respondent’s solicitor criticising the wife for the QQ Financial Services loan account continuing to be overdrawn.
The total monies advanced by way of loan to the wife and/or the husband and/or the BFT from the wife’s parents or either of them was a sum of at least on the evidence $165,851.92, or $150,617(if the outstanding rates of $15,234 came out of the sale of the Town EE property). The financial statements of the BFT for the financial year ended 30 June 2023 contained a Balance Sheet wherein the liabilities of the trust, being only those borrowings advanced to it from the wife’s parents or either of them, were more reliably documented in the sum of $119,308. The difference between this amount and the sum of $165,851.92 (being $46,543.92), or the lesser sum of $150,617 (being $31,309) or some greater amount, were monies advanced by the wife’s parents on her behalf for the benefit of the husband, wife and their children.
In mid-2023, the husband was unsuccessful in his District Court of New South Wales appeal against his earlier convictions. However, he was released for sentence served. He remained on bail, living with his mother in her home in Western Australia (a condition of his bail) until the hearing of charges arising from the incident which occurred on early 2023 (as above).
On 4 August 2023, the parenting and property proceedings were bifurcated, with the parenting proceeding being listed by the Court for an undefended final hearing.
On 21 August 2023, orders were made by consent, relevantly that:
(1)the husband be removed as trustee of the BFT and as a beneficiary of the trust;
(2)the wife be appointed as trustee of the BFT (the husband and his mother had removed her as a trustee at an earlier point in time); and
(3)the husband in his capacity as appointor of the BFT be restrained from removing the wife as trustee or appointing any additional trustee.
On 6 September 2023, the parenting orders proceeding was listed for an undefended hearing. The husband appeared at the hearing. He had not filed any documents. The undefended hearing was vacated and a s 102NA of the Act order was made for the husband to obtain legal representation. The husband did not make application under the scheme for legal representation.
On 24 November 2023, final parenting orders were made on an undefended basis providing for the wife to have sole parental responsibility for the child X; for X to live with the wife; and for X to spend no time with, nor communicate with, the husband. The Court made a raft of injunctive orders to support these orders including that if a Police officer believed on reasonable grounds that the husband had breached an injunctive order, then the husband could be arrested without warrant. The wife was permitted to change the child’s name to X.
In late 2023, the husband again breached the ADVO by driving down the wife’s parents’ driveway in Suburb J, parking his car, getting out and saying words to the effect of, “I’ve been invited to come into the house and have a coffee with [Ms Cowan]”.[7] That was not true. He approached the wife and gave her several hugs and attempted to kiss her three times. The wife’s parents came outside and told him to leave the property, after which he left.
[7] Wife’s trial affidavit filed 19 September 2024, paragraph 138.
Two days later, the wife’s parents reported the husband’s further breach to Suburb G Police Station. The wife made a police statement that afternoon.
In late 2023, the husband was arrested for breach of ADVO. Bail was refused and he remained in custody until receiving a sentence in early 2024 for his conviction on the earlier charges. He was sentenced to a term of imprisonment, ending mid-2025, with parole eligibility from late 2024. He was released on bail by the District Court of New South Wales, where he had lodged an appeal, in early 2024. His further criminal proceedings are listed for hearing in late 2024 for an all-grounds appeal and severity appeal against his current sentence, an ADVO breach appeal, and a 20 year ADVO extension appeal/revoke.
In early 2024, the wife voluntarily admitted herself to hospital suffering from distress, depression, anxiety and self-harm. She was discharged some weeks later.
In early 2024, the accumulated effect of contact with the husband through the Court system and repeated adjournments caused the wife to completely decompensate, as opined by Dr NN, requiring a respite admission at a private clinic.
On 19 June 2024, the Court made further orders pursuant to s 102NA of the Act such that the husband could be legally represented in the property orders proceedings. The husband again failed to make application for representation, continuing his non-participation in the proceeding.
LEGAL PRINCIPLES
Section 90SM of the Act provides:
(3)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
It is necessary to begin by identifying the existing legal and equitable property interests of the parties. It must not be assumed the parties’ rights to or interests in property are or should be different from those that then exist, or that a party has the right to have the parties’ property divided by reference to the statutory considerations (see Stanfordv Stanford (2012) 247 CLR 108 at [37]–[40] and [50]).
Although in Stanford v Stanford (2012) 247 LR 108 the High Court was dealing with an application between spouses for property settlement pursuant to Pt VIII of the Act, the principles apply equally to applications between de facto partners pursuant to Pt VIIIAB of the Act.
If and once determined it is just and equitable for the identified property interests of the parties to be altered, the process of evaluating the proper orders to make is dictated by the factors enumerated within s 90SM(4) of the Act. The court must necessarily identify and assess the parties’ contributions within the meaning of ss 90SM(4)(a)–(c) and then take account of the relevant matters referred to in ss 90SM(4)(d)–(g) and 90SF(3) of the Act.
The s 90SM(4) of the Act provides:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last - mentioned property;
whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last - mentioned property;
whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) of the Act provides:
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b) 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; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) 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; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), 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; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
EVIDENCE
The wife
The wife’s evidence was unchallenged. I accept it in its entirety.
GG Limited
The evidence of GG Limited as put before the Court was also unchallenged and I accept it.
Dr NN, Consultant Psychiatrist
Dr NN’s evidence was not challenged, and I accept that evidence.
Dr NN is a consultant psychiatrist who has treated the wife. She prepared an expert report dated September 2024, together with an addendum to her report dated September 2024. Those materials are in evidence before the Court.
Dr NN first saw the wife in October 2019, and continued to see her regularly, mostly weekly, and at least fortnightly. The only break in attendance by the wife was between February 2021 to November 2021, during which time the wife had a reconciliation with the husband.
Dr NN gave evidence that the primary diagnosis of the wife is a stress related disorder, with its genesis being her relationship with the husband. Dr NN described that relationship as one of coercive control, which was emotional, physical, sexual and financial in nature.
Dr NN stated that she never had any reason to doubt the veracity of the wife’s history, which had been consistent throughout the last five years of their professional relationship. Dr NN noted that the wife’s disorder had been compounded by ongoing abuse from the husband and a multiplicity of Court hearings. At various times, the wife had experienced periods of intense distress and periods of depression. Dr NN formed the impression that the wife has pre-morbid generalised and social anxiety, which more than likely made her vulnerable for the relationship with the husband.
The wife suffers various symptoms, including the re-experiencing of traumatic and random events; avoidance, where the wife tries not to think about traumatic events and tries to stay purposefully away from things reminder of traumatic events; numbing, where the wife will become numb as a means of coping, will lose interest in things she used to enjoy, and will feel emotionally distant and cut off from people; arousal, where the wife can often have trouble falling asleep during ongoing traumatic events and when reminded of past traumatic events, can have trouble concentrating at these times; is often more alert and watchful than needed, and is often easily startled by ordinary noises.
Additionally, the wife suffers from negative self-concept, with strong feelings of worthlessness and guilt which have persisted post separation; interpersonal disturbance which has limited her friendships and social network separate to her parents; and her children’s worlds; and affect dysregulation where, when dysregulated, she experiences a number of somatic symptoms and will often dissociate.
In Dr NN’s expert opinion, the wife’s experiences during her relationship with the husband, a relationship which she considered to be coercively controlling, made her contributions more onerous. She noted whilst the wife was trying to balance caring for her son and working, effectively, for her father, she was also constantly fearing the husband’s response. In her view, the wife was hard working, but the expectations of the husband regarding her financial and parental responsibilities made her tasks more onerous and impeded her capacity to contribute financially. In Dr NN’s view, the wife’s task as a homemaker during the controlling relationship she had with the husband made her feel increased pressure to comply with his directions, and great fear if she did not. That made completing the tasks required to be completed by her of the husband more difficult.
In respect of her parenting, Dr NN opined that, “the level of physical exhaustion and fear she was experiencing as a result of her coercively controlling relationship, would have made it harder for the wife to perform her parenting responsibilities to the level she wished to”.[8] When asked to describe details of the wife’s prognosis, and the impact of her diagnosis on the wife’s future functioning, Dr NN opined that owing to both the longstanding and ongoing nature of the wife’s abusive and traumatic experiences, she had not been able to establish feeling either emotionally or physically safe from the husband. Tangible evidence that she was not safe were the ongoing legal issues relating to her physical safety in relation to the husband. Ongoing financial matters in the Court were also being used by the husband as another means of coercive control.
[8] Affidavit of Dr NN filed 1 October 2024, p.13.
In Dr NN’s opinion, owing to the severity and duration of the coercive control the wife has been the victim of, she will never feel completely safe.
It was Dr NN’s expert opinion evidence that:[9]
There is robust evidence that [Mr Braun’s] coercive control is highly likely to place [Ms Cowan] at even higher ongoing risk. This is because [Mr Braun] was incarcerated for a "gross act of animal cruelty". This is a significant factor in relation to [Ms Cowan’s] prognosis. In a study by Rock et al. 2021:
Analyses indicated individuals who endorsed a history of […] scored significantly higher than non-abusers on the psychopathy screening checklist, short version (PCL: SV) total score. Indeed, the results also suggested significant differences across the facets of psychopathy.
Psychopathy is not a DSM-5 diagnosis. However, the psychopathy checklist - short version (Heart et al. 1995) is the evidence-based assessment tool. [Ms Cowan’s] capacity for feeling safe, essential to her recovery, are negatively impacted by [Mr Braun’s] history of animal cruelty and other behaviours indicating psychopathy.
[9] Affidavit of Dr NN filed 1 October 2024, p.14.
In respect of her ongoing ability to work, it was Dr NN’s opinion that whilst the wife is highly intelligent and has several personality strengths and resiliencies and is also insightful and highly motivated to regain her mental health, her recovery is constrained by the matters raised above. In her opinion, the wife is not capable of engaging in meaningful work for a prolonged period. She has some capacity for part-time study now, but not in a sustained way. She concluded that, in time, the wife may have a capacity for volunteer work. In the even longer time, she would hopefully have the capacity for part-time work, however Dr NN did not feel she would ever be able to engage in full-time work consistent with her intelligence and capacity.
THE ASSET POOL
Assets
Ownership
Value
Proceeds of sale of Suburb JJ, Suburb JJ NSW
Braun Family Trust
$454,418
Proceeds of sale of DD Street, Town EE NSW
Braun Family Trust
$794,176
TOTAL ASSETS
$1,248,594
Liabilities
Ownership
Value
Loan from Mr KK
Braun Family Trust
$99,266
Loan from MM Pty Ltd
Braun Family Trust
$20,042
TOTAL LIABILITIES
$119,308
TOTAL NET ASSETS
$1,129,286
CONTRIBUTIONS
Commencement of cohabitation
Neither the husband nor wife had assets of significance at the time they commenced their cohabitation.
During cohabitation
Shortly following the commencement of cohabitation in 2008, the husband, who had described himself as self-employed, became unemployed. He remained unemployed until the purchase of the Suburb JJ and Town EE properties some eight years later, when he commenced to engage, along with the wife, in agricultural activities. Unfortunately, little money was made from the efforts of the parties in their agricultural pursuits.
The wife remained, during cohabitation, the primary carer of the two children in the household. She remained at home caring for them until September 2014, when she commenced to be employed at her father’s business. That employment continued until mid-2021 and was insisted upon by the husband. The wife ceased receiving Centrelink childcare benefits, in late 2015, after X turned six years of age.
At the husband’s insistence, X was home schooled by the wife in 2018 and 2019, and B was homeschooled in 2018. In 2019, the wife was required to take X to work with her because she received frantic phone calls from X, having panic attacks, because his father had left him alone. She continued trying to home school X and fulfil her employment obligations at the same time for a period of approximately five months until the wife left the husband in October 2019.
From the commencement of cohabitation in 2008, the parties lived rent free at the Suburb E property of the wife’s parents, a contribution made on behalf of the wife. That rent free accommodation continued until the parties final separation in January 2022. The wife’s parents made the financial contributions they did as set out above.
The husband received his inheritance of $75,000 which was applied to the Suburb JJ and Town EE properties and the living expenses of the family.
The wife made a significant contribution to the children’s physical, educational (including music) emotional and financial care and advancement in their school years. While she continued these caring roles, her employment and her home duties, she also commenced to:[10]
Put a lot of energy in providing freshly made food, including making my own sour dough every day, fresh pasta with our own eggs. I grew vegetables and made sure they were eating live food every meal.
[10] Wife’s trial affidavit filed 19 September 2024, paragraph 61.
The wife put considerable effort into learning to cook and store food which was part of the husband’s family culture, and to learn some of his grandmother’s and mother’s recipes to respect their heritage. She spent time with the children showing them how to look after and feed animals, and helped them with their chores which, at the time, she considered were unrealistic for their age and capacity but were, nevertheless, imposed upon them by the husband.
At the Town EE property, the wife undertook considerable manual labour. She pulled down old fences; pulled out weeds on the majority of the acreage; improved soil by seeding and fertilising and growing over two acres of produce; and cared for all the animals. She fixed animal pens, constructed shelter for the animals and cleaned out their pens. The husband also engaged in considerable and difficult manual labour.
Approximately every fortnight, the wife would unload just under a tonne of feed into barrels by bucket. The parties had a large livestock population. She also unloaded pellets of animal food into shipping containers. The wife acted under the direction of the husband in many tasks, which were onerous and often unsuccessful ventures. The wife, herself, was generally responsible for medical treatment to the animals, including administering medication, changing bandages, caring for broken limbs and euthanasia, which she found traumatic. The wife described, in her affidavit evidence, the following:[11]
…I would often use alcohol to numb myself to perform this act. At times, my eldest son, [B], saw how distressing it was for me to do this when [Mr Braun] insisted I was to take care of the task, that he would go and put animals down for me out of compassion. This created an intense feeling of guilt and overwhelming helplessness to my situation to see my son go through this as a sacrifice for me.
[11] Wife’s trial affidavit filed 19 September 2024, paragraph 53.
In the third respondent’s absence, on those occasions when she would leave the Town EE property for a few days or longer, the wife felt it her responsibility to make sure the house was as clean as possible on the third respondent’s return. She would hose the verandah, sweep the cobwebs off the outside of the house, clean the bathroom, do the washing, and sometimes cook so that food, pre-cooked, was available to the third respondent to arrive home to. It was also the responsibility of the wife to take filtered water to the farm from Suburb E for the third respondent to drink. She was diligent in that task.
The husband, wife and their children spent considerable time at the Town EE property at the request of the third respondent for the purpose of making it productive and looking after the third respondent's needs. On those occasions, the wife, at the direction of the husband and as assisted by him, would fix water pumps, air conditioning, pool pumps and otherwise engage in extensive maintenance and improvement tasks as needed at the property.
Family violence during the relationship
The wife set out in her affidavit of evidence the serious violence she endured during the relationship. It is instructive to set it out below in its totality. It puts in context the long-standing impact it has had and will have as opined by Dr NN. It is a history provided as follows:[12]
[12] Wife’s trial affidavit filed 19 September 2024, paragraphs 68-98.
68. Throughout my relationship with [Mr Braun] he was physically, sexually and emotionally abusive towards me. During many sexual encounters with [Mr Braun] he would grab my hair […] and wrap it around his wrist, he would then pull my head back so that I could not move. He would then have very forceful vaginal and/or anal sex from behind. I was unable to move and it was extremely painful. I felt powerless to stop him. I would often bleed from the vagina or anus afterwards and my hair would fall out. [Mr Braun] would force oral sex by grabbing my hair and pushing my head onto his penis. I would often submit to this, but he would then grab my hair and thrust my head backward and forward to the point where I would start gagging and felt as though I could not breathe. There were occasions where he would ' pull out' before ejaculating and wipe the seamen up my nostrils and into my eyes. There were a few occasions when he urinated on me in the shower.
69.On one occasion I woke up to [Mr Braun] ejaculating over my face. [Mr Braun] was later convicted of sexually assaulting me on this occasion.
70. There were many occasions when [Mr Braun] would choke me however the incidents that stand out the most are when he choked me until I started to black out. I can recall on one occasion following sexual intercourse, [Mr Braun] passed out while he was choking me (he was drunk at the time) I thought I was going to die but he sighed and rolled over.
71. I can recall a particularly traumatic incident when [Mr Braun] ran over [an animal]. He ordered me to cut its head off with a blunt hatchet. I was distressed and panicking making ‘practice blows’ in the dirt. When it took me too long to follow his directive, [Mr Braun] grabbed the hatchet off me and hacked at the [animal] until he had semi-severed its neck. He then threw the [animal] at me and drove off leaving me at the [property] with blood all down the front of my shirt.
72. He was extremely controlling of both me and the children.
73.There were also occasions when [Mr Braun] was also physically abusive towards the children and [Ms N]. [Mr Braun] would shove me, [Ms N] and the children when he was angry or trying to get his point across.
74. I can recall an incident in […] 2012 when [Mr Braun] and I had an argument about me attending a workshop […]. [Mr Braun] wanted me to attend this in preparation for the ‘crash of society’. I did not want to go. [Mr Braun] threw my car keys into a fire, and they melted. I pushed [Mr Braun] during an argument then [Mr Braun] shoved me into a bookcase, and I fell to the floor. He then dragged me by the arm into the next room. I had several cuts and bruises to my body after this incident.
75. [Mr Braun] would often argue with [Ms N] and I about the children or money. He would threaten to kick [Ms N] out of the house, on one occasion he cut the power to her house and locked the front gate to the property while she was hiding in the toilet from him. I can recall an occasion when he punched her car bonnet with his fist. He would often call her names like ‘bitch’, ‘witch’, ‘slut’ and ‘cunt’. This would often occur in front of the children. He damaged precious things belonging to [Ms N] in rage such as precious glassware. He also blocked her from our phones and prevented family contact with her. On one occasion I heard an argument between [Mr Braun] and [Ms N] about money. I then noticed there was a severed head of [an animal] on [Mr Braun’s] front windscreen/bonnet. I understand that [Mr Braun] made an admission about this incident in an Affidavit filed in the previous proceedings.
76. [Mr Braun] would often ‘yank’ or drag the children to get them to do what he wanted. I can recall an incident when he dragged [B] up the stairs by his aim(sic) and flung him on the bed. He has also strapped [B] and [X] with a belt. There was an incident where [Mr Braun] hit [B] with a stick while yelling at him to hurry up and load several [heavy] dog food bags into the back of his Ute tray.
77. In or about August 2017 [B] and [X] were practicing [sport]. They got upset with each other and [B] pointed the [equipment] in [X’s] direction. [Mr Braun] punched [B] in the body and shoved him to the ground. [Mr Braun] would not allow [B] any dinner and locked him out of the house that night. It was cold and he was only allowed to wear the t-shirt and jeans he was wearing, [B] ended up sleeping in [an old building] overnight with the dogs as comfort. This event still traumatizes him, and he recalls it as “the worst night of his life”.
78. When [B] was about 7 years of age, [Mr Braun] slapped him across the face.
79. There were several occasions where [Mr Braun] would insist that the children put down animals […] using a […] gun. He would also instruct them on bow(sic) to kill chickens telling them to hold the chicken by the head and twirl them around until their necks snapped. [Mr Braun] described such activities to the children as ‘fun’. The first time this occurred for [B] he was about 8 years and for [X], he was about 7 years.
80. Anytime I attempted to intervene, [Mr Braun] would become more aggressive. It seemed this would escalate [Mr Braun’s] anger and violence. I was convinced at any time that there was an argument, discipline or abuse being carried out by [Mr Braun] that if I tried to stop or object to his behaviour, the punishment would intensify and I would only make things worse for everyone.
81. [Mr Braun] did not like me using contraception. I was taking the contraceptive pill. At this time [Mr Braun] had an affair with another woman. He told me that he was not attracted to me when I was on the pill because “I had no smell” from my genitals that he found enticing. [Mr Braun] did not want me to have IUDs, take the pill or use other forms of contraception such as condoms or diaphragms. I was afraid to go on the pill again because [Mr Braun] made it clear to me that one of the main reasons, he was attracted to this other woman, was because of her strong and exciting genital smell.
82. [In] 2018 was the first pregnancy. We decided that I should have an abortion. This was a medical abortion that involved taking tablets. This was very distressing for me.
83. I fell pregnant again in […] 2018. I underwent a surgical abortion.
84. I fell pregnant again in […] 2019 and had another surgical abortion.
85. Throughout the relationship I felt it(sic) completely controlled by [Mr Braun]. He would often dictate that I had to leave the property and when I was allowed to return. He controlled nearly every aspect of my life. [Mr Braun] determined who I was friends with and what I was allowed to speak to them about. He would often try to control my working hours/days and my interactions with technology. I was not allowed to share any private information on the phone. He would control what search online and content I was able to view. He controlled the type of phone I was allowed to use. For example, I could not have a phone that had finger-print ID. We had to put stickers over the webcam on the computer. He also disapproved of me using social media or speaking about our private life over emails or on the phone to anyone, saying I was putting our family in danger by doing so. When we reconciled for a period of time in February 2021 [Mr Braun] seemed to ‘relax’ about using social media and the internet. However, he would continue to monitor my phone by checking my text messages and phone calls.
86. Following our first separation, on 24 December 2019, [X] was spending time with [Mr Braun] in accordance with the interim orders. During this time, I was contacted by a mutual friend, […] and informed that [Mr Braun] had slain [an animal] from the [property] next door. I was informed that [Mr Braun] ran over the [animal] with his [motor vehicle] and then slit its throat.
87. [In late] 2019, I received a delivery from [Mr Braun] via [a carrier service]. Along with a box of [gifts], the delivery included a full leg of [an animal], skin and hair still attached, with the exposed flesh end wrapped int a beach towel. I was shocked to receive such a delivery. The flesh of the [animal] smelt as if ill(sic) was beginning to decay.
88. In early 2020 I was contacted by [a police officer] who informed me [Mr Braun] was in custody and had been charged with animal cruelty following the event reported [in late] 2019.
89.[In late] 2020 I became aware that [Mr Braun] had been sentenced to […] imprisonment (with a non-parole period […]) in relation to the animal cruelty and other associated charges.
90. [Mr Braun] filed an appeal against the severity of his sentence. This was heard [in late] 2020. [Mr Braun] was successful. He was released from custody and sentenced to a […] Correction Order.
91. Following our reconciliation in February 2021, it was not long before I began to experience the cycle of abuse from [Mr Braun] again. This began with kind, loving actions and behaviour followed by coldness, no eye contact, silent treatment, resentment, disregarding attitudes and judgement without explanation. I would either submit to his control or he would trigger me to react in distress.
92. I have experienced control by [Mr Braun] in every aspect of my daily life. My decisions, opinions, and values were disrespected, criticized and denied. I was completely isolated from my friends and family. I was discouraged to work outside of what he saw as “the family business” and wanted me to have an online business so I could work from home. I was told I was not to have any private phone conversations outside of the house or in the car. [Mr Braun] would almost always accompany me when I would leave the property, usually dictating when and where I could go and return.
93. [Mr Braun] also pressured me to obtain financial support from my parents. From July 2021, not only were my parents paying for our rent and utilities but they were also loaning money for ow-(sic) food, fuel, living expenses and our mortgage payments. My parents stopped providing money for mortgage payments in August 2021 but continued to loan money for food and other living expenses. My parents even assisted [Mr Braun] in paying legal fees that were outstanding from the earlier family law proceedings. When [Mr Braun] didn’t receive the financial support he expected from my parents, he would yell at me and call them names like “filthy cunts” He said their behaviour was the equivalent of “raping their grandchildren”.
94. [Mr Braun] repeatedly said to me words to the effect of “It was your decision not to keep the pregnancies. This was made without my approval or consent”. He repeatedly accused me of ‘murdering’ the babies. I recall an occasion when I said o (sic) [Mr Braun] words to the effect of “I would like to have a copper IUCD inserted”. I had already had to take emergency contraception prior to this to prevent pregnancy. I had appointments and a script arranged for this, but he prevented the procedure. I recall him saying to me words to the effect of “You are trying to control me by making these decisions that I don’t approve of”.
95. He later shared with me his desire to have another baby as soon as possible. I felt pressured and guilted into agreeing to another pregnancy, and that it was my moral Christian responsibility as a wife to do so. I fell pregnant in […] 2021, and I miscarried at 9 ½ weeks. I began bleeding and spotting two weeks before this. I was continuously concerned about something being wrong with the pregnancy. I was not allowed to make any doctor’s appointments myself. Following the miscarriage, I wanted to attend the hospital for a curette to remove the dead fetus (sic). [Mr Braun] refused to allow me to have the medical procedure. He said to me words to the effect of “Your body will expel it naturally”.
96. I recall my doctor saying to me words to the effect of “there is a serious health risk in leaving the fetus (sic) in place for longer than two weeks. It is important you receive an […] injection due to your […] blood type”. I expelled the fetus (sic) about 3 to 4 weeks after the dating scan detected no fetal (sic) heartbeat. My GP made arrangements for me to receive an […] injection at [a] Hospital in Sydney. When I was contacted for booking arrangements and asked the COVID-19 precautionary questions, [Mr Braun] took the phone off me and hung up.
97. Specific details of some other incidents of violence I experienced between February 2021 and […] January 2022 are detailed in my statement to NSW Police annexed below.
98. There was an occasion during our relationship where [Mr Braun] said to me words to the effect of “If you leave me and take the children, your parents won’t be around to help you raise them”. I interpreted this to be a threat that he would harm my parents. I am also aware that in or about October 2017 [Mr Braun] threatened my mother stating that he was going to hire a hit man to kill her and my father. I took this threat seriously because I can recall an incident in 2014 when [Mr Braun] threatened to kill his uncle […] with a [weapon]. He waited at his grandmother’s home for his uncle to arrive. [Mr Braun] was waiting outside and there was a [weapon]. I recall saying to [Mr Braun] words the effect of “What are you doing out here” To best of my recollection [Mr Braun] said to me words to the effect of “I am waiting for [my uncle]. When he arrives I am going to take him out”. I went into a panic and called my Mum. I did not know what to do. I pleaded with him not to. [Mr Braun] waited for his uncle but he never arrived.
Impact of family violence on wife’s capacity to make a contribution
The evidence of Dr NN sets out the more onerous nature of the wife’s contributions as a result of the family violence perpetrated upon her both during the cohabitation, and after it, and I accord her evidence significant weight.
The wife provided her own evidence as to the impact of the family violence perpetrated upon her by the husband as related to her ability to make those contributions she made for the benefit of the children, to provide financially for the family, and to assist in the agricultural endeavours. The wife deposed to a significant increase in her alcohol consumption. It was her belief that she consumed alcohol as a means of trying to cope with the stress, as well as the emotional and physical abuse experienced during her relationship with the husband. She deposed to constantly feeling anxious, as though she had to “mentally prepare” herself for the day ahead. She said, “Drinking alcohol would help me to become ‘machine-like’ in my functioning”.[13]
[13] Wife’s trial affidavit filed 19 September 2024, paragraph 141.
The wife would usually wake up between 3.00am and 4.00am. She would have a coffee with alcohol, however that then transitioned to her having about three glasses of wine to having about two to three shots of alcohol. She would usually need about three drinks in quick succession to feel the effects to get on with her working day.
On a weekend, if at the property, she would pace her drinking throughout the day to maintain a certain level of numbness, but so that she could still function. She would put alcohol in her water bottle and take it to work just to maintain her functioning. On weekends, she drank to excess whilst attempting to maintain a balance of having a level of disassociation with the capacity to function so that she could perform the work the husband required of her, while often being abused by him. At night, she would consume more alcohol to prepare herself for what she could expect in the evening. Her evidence is that she needed to make herself feel numb enough to be able to perform the sexual acts that pleased the husband.
Throughout the relationship, the wife would experience depressive events where she could not get out of bed for several days. This would only occur when the husband and third respondent were not at the properties. On those occasions, she could only get out of bed to feed the children and the animals.
The wife will have the sole care of the party’s child, X, until he turns 18 years of age. She bears the entire responsibility of raising him in each of a physical, emotional and financial sense. She receives and will receive no support from the husband.
The wife is unable to obtain full-time employment, and her treating psychiatrist has opined that the significant mental health issues from which she suffers as a consequence of the husband’s behaviours, not only require ongoing attention by way of therapeutic intervention and abiding treatment, but have a completely deleterious impact on her ability to gainfully derive income from employment.
The wife’s evidence of a prolonged and ongoing pattern of abusive behaviour with horrific family violence at the hands of the husband, including coercive and controlling behaviours, physical violence and sexual assault, have impacted the wife and made her contributions significantly more arduous, including those contributions made, at the insistence at times, and direction of the husband.
The severity of the conduct of the husband, which is in evidence before the Court, wherein the husband’s behaviour toward the wife is appropriately described as “dehumanising”, leads the Court to find a significantly adverse impact upon the wife’s contributions as caused directly by the husband’s conduct.[14]
[14] See Keating & Keating (2019) FLC 93-894.
Post-separation
Having moved out of the Suburb E property upon separation, the wife and children were able to move back into that property upon the husband’s forced departure from it. Following final separation, the wife became unable to afford to meet the weekly mortgage repayments in respect of the BFT properties, and in late January 2022, applied for financial hardship with QQ Financial Services. This was approved for a period of three months. At that time, she was completely reliant on her parents for financial support. Neither the husband nor the third respondent would make any contribution to the mortgages or any contribution to her or the children’s support.
In May 2022, the wife was approved for further financial hardship relief in respect of the QQ Financial Services mortgages secured by the BFT properties. That arrangement ended in early August 2022. Upon the financial hardship relief period ending, and the wife being unable to afford the mortgage arrears and/ or the mortgage repayments, she determined that the Suburb JJ and Town EE properties should be sold to avoid foreclosure by QQ Financial Services on the BFT properties.
The wife, as sole trustee for the sale of the properties made all necessary arrangements to prepare them for sale.
In or about late 2022, the wife accepted an offer of $710,000 to purchase the Suburb JJ property. Around that time, the wife was informed there was a liability owing to New South Wales Revenue Land Tax for both properties in the sum of $54,587.90. The land tax notice had been sent to a post office box held under the husband’s name. The husband had ignored the demand for payment. The wife was advised that the land tax liability needed to be paid prior to the sale of the Suburb JJ and Town EE properties. With no offer of payment or part-payment of this liability coming from the third respondent (whom the wife had advised of the liability), the wife approached her parents for further financial support on the basis that they would be repaid any monies so advanced by them to the BFT. The wife’s parents paid the land tax in the sum of $53,768.95 after receiving a discount for paying the full amount prior to late 2022. The land tax bill was higher than it should have been because the husband failed to provide New South Wales Revenue with relevant material. Specifically, the BFT documents, such that New South Wales Revenue declared the BFT a “special trust” which incurred a surcharge.
In late 2022, settlement of the sale of the Suburb JJ property occurred. The wife was solely responsible for payment for all costs associated with the selling agent and conveyancer's fees as derived by her from a further loan from her parents to the BFT.
Sale of Town EE property
The wife was also the sole trustee in respect of the sale of the Town EE property and in that capacity, she undertook all works necessary to prepare that property for sale. These included the repairs necessary to the driveway of the Town EE property at a cost of $44,000. Again, funds were advanced by the wife’s parents to the BFT, as borrowings to be repaid, after the husband and third respondent declined to make any contribution to the repairs cost, where the expenditure of such funds was necessary to enable the third respondent to remove, in shipping containers, her belongings.
Upon the sale of the Town EE property, the wife became personally responsible for the capital gains tax of $122,326.53 (based on her nominated beneficiary account as of 30 June 2023). The wife was responsible for the payment of the accountant’s fees in preparing financial statements and tax returns for the trust. Those payments totalled approximately $22,500. These monies were again advanced, inferentially, by the wife’s parents to the BFT.
RELEVANT S 90SF(3) CONSIDERATIONS
The wife is currently enrolled as a student. Both she and the children are living full-time with her parents at their home in Suburb J. The wife continues in her role as primary carer to the children. The husband will not be involved in the ongoing care of the child X.
The wife has the support of her parents who assist her with looking after the children and who provide financial assistance to her as needed. The wife described them as providing “a healthy, loving and supportive, caring and calm family environment for the children to maximise their potential in a non-judgemental or controlling way”.[15]
[15] Wife’s trial affidavit filed 19 September 2024, paragraph 268.
The children engage in extracurricular activities such as swimming lessons, music lessons and various sporting activities. The wife has taken the children to counselling, and is solely responsible for their intellectual, emotional, financial and physical needs.
The wife is in receipt of Centrelink benefits. She receives and, in all probability will receive, no Child Support payments from the husband.
The wife’s earning capacity has been adversely affected by the family violence endured by her during the de facto relationship and it is not probable that she will ever work in a full-time capacity. Her return to part-time work is some time into the future, if at all.
The husband may have a further period of incarceration and has no current prospects for employment.
The third-party creditor of the husband will receive, out of the husband’s entitlements to any property of the parties, the monies that the Court finds are to be paid to GG Limited.
GG Limited
GG Limited, the intervenor is a bona fide creditor of the husband and is entitled to be heard on the appropriate orders to be made at final hearing. That is not in dispute.
The wife acknowledges that a loan is owed by the husband. She does not know as to its quantum save for that information as provided by GG Limited.
The Court is required to consider the claim of the husband in the context of the competing property applications otherwise before the Court.
The primary position of GG Limited is that the sum of $178,683.88 be visited upon the balance sheet as a matrimonial liability in the name of the husband. The components of that sum are principal, interest and fees owing of $145,073.38, with the balance claimed to be in respect of enforcement costs including those not yet crystallised.
As submitted by counsel for the wife, the position adopted by GG Limited raises the following issues for consideration by the Court. Firstly, whether consistent with s 117(1) of the Act and what the Full Court said in Chorn & Hopkins (2004) FLC 93-204, the Court should disregard the liability of the husband when compiling the balance sheet and determine the husband’s entitlements by reference to ss 90SM(4) and 90SF(3) of the Act in the ordinary course. Should that approach be adopted, the wife would not be heard against it, and indeed, it is her proposal that the Court makes an order that the husband’s entitlements be paid directly to GG Limited. Alternatively, whether the Court departs from those principles and prioritises the interests of GG Limited as a third-party creditor as urged by GG Limited.
In the circumstances of this case, the husband entered into a loan agreement with GG Limited in a personal capacity, and incurred debt to fund his legal fees without any consultation with the wife. Indeed, he entered into such contract during a period of time when the parties were separated. Those legal fees included payment of criminal proceedings wherein in respect of some of the charges, the wife was the victim.
The wife’s approach to the way GG Limited’s claim is to be determined is considered by the Court to be more appropriate. Indeed, the only just and equitable approach. The Court is only required to consider the ability of GG Limited to recover its debt from the husband so far as that is relevant. The legislation does not prioritise GG Limited’s claimed debt. This is further addressed in the conclusion hereafter.
CONCLUSION
I am satisfied that in all the circumstances of the case it is just and equitable to make orders adjusting the parties’ property interests.
GG Limited submitted that the Court should consider the existence of the debt to it an entitlement and consider an order for payment of that debt before the net assets are otherwise divided between the remaining parties. That is, prioritise the interests of GG Limited as a third‑party creditor. That is an approach the Court shall not adopt.
The alternative method as posited by GG Limited is however one acceptable to the Court namely, to determine what is owed to the husband, and see to it, possibly, that the intervenor is paid out of that eventual distribution. While GG Limited is a bona fide creditor, GG Limited is a bona fide creditor of the husband only. The determination I must make is a discretionary one.
The usual approach shall be adopted by the Court, namely that the legal fees of the husband shall not appear as a liability on the balance sheet in a manner that will reduce the entitlement of the wife to matrimonial assets.[16] Indeed, the Court has noted:[17]
...where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account.
[16] Chorn & Hopkins (2004) FLC 93-204 at [32]-[60].
[17] Chorn & Hopkins (2004) FLC 93-204 at [55].
In my view, the first approach as sought by GG Limited for the Court to adopt is inappropriate and does not achieve justice and equity for the wife as described above in these reasons. Further, I note the following:
(1)Some part, not quantified, but probably a large part, of those legal fees as funded by the litigation funder, were applied to the many criminal proceedings of the husband which related to animal cruelty and serious family violence as perpetrated by the husband upon the wife, including sexual offences. The earlier parenting orders proceeding as discontinued by the wife were not extensive, and the husband failed to participate in this proceeding - thus incurring no legal fees.
(2)The genesis of the husband’s debt is a loan agreement entered into between he and GG Limited, which was subsequently varied by the provision of further borrowings to the husband, to be applied for the payment of legal fees incurred by the husband in quantum and application as determined solely by the husband subject to the borrowing limit. The wife was not a party to the contract and its variation and nor did she have any knowledge of those matters.
(3)There is no conduct of the wife that required the husband to, out of necessity, seek out the GG Limited loan.
The proceeds of sale of the matrimonial properties stands at $1,248,594, which is held in the trust account of the wife’s solicitors.
I am satisfied that the BFT owes to the wife’s father, mother and/or companies controlled and owned by them or either of them the sum of $119,308. Those monies must be paid out first as a priority. The wife acknowledges those borrowings to the BFT. That leaves an amount of $1,129,286.
The wife, as the nominated beneficiary of the trust, has incurred a Capital Gains Tax liability of $122,326 as a result of the sale of the BFT properties which must be reimbursed to the wife (if the wife has made payment) or paid to the wife as a priority payment, as sought by the wife. That leaves an amount of $1,006,960.
The wife will be responsible for the costs associated with the winding up of the trust which are not quantified in the proceeding. Those costs will in all probability reduce the monies available for distribution between the wife, the husband and the third respondent to an amount of $1,000,000. This will be required to be a priority payment as sought by the wife.
Pursuant to the wife’s Amended Application for Final Orders filed on 2 September 2024, the wife seeks an order that $115,000 is paid, on behalf of the husband, to GG Limited, being in effect the husband’s entitlement to a distribution as between her and the husband and the wife seeks that such monies be paid prior to a distribution of the balance of funds remaining as between the wife and the third respondent. Notionally, there will be a sum of $885,000 available to the wife and the third respondent. GG Limited does not take issue with this approach. The third respondent does not press her case.
The third respondent has on the evidence, an interest in the corpus of the BFT funds, which constitute the proceeds of sale of the two properties as owned by the BFT. Both properties grew in value during the time that the trust owned them.[18]
[18] See Jabour & Jabour (2019) FLC 93-898.
The third respondent was owed by the BFT, as a beneficiary, a sum of $369,900 as at 30 June 2023. That was approximately 32 per cent of the Beneficiary Accounts at that time. The wife seeks an order that such percentage be retained by the third respondent. That is an appropriate order. A just and equitable order. It would result in a sum of approximately $283,200 being paid to the third respondent.
The wife would receive the sum of approximately $601,800. The husband has received notionally $115,000. Of that asset pool of $716,800, the wife receives slightly less than 84 per cent and the husband around 16 per cent. I consider that to be a just and equitable outcome.
The wife’s significant contributions to the primary care of the children, both during the relationship, and in the period following separation and continuing to adulthood, for X, is given significant weight by the Court.[19]
[19] See Mallet v Mallet (1984) 156 CLR 605 and Williams v Williams (1985) FLC 91-628.
The Court also accords a significant adjustment to the onerous nature of the wife’s contributions due to the husband’s perpetration of family violence upon her, and upon the children.
Further, the Court takes into account the financial and non-financial contributions made on behalf of the wife by her parents. The Court also takes into account the inheritance funds of the husband.
The Court assesses overall the contributions of the wife to provide an approximately 20 per cent adjustment in favour of the wife.
The s 90SF(3) of the Act considerations also favour the wife. She will have limited earnings, if any, because of the husband’s actions as described above. It is probable that she will receive no child support payments from the husband. She will have the full care of X who was 14 years of age at trial. The Court shall make a further adjustment of approximately 14 per cent in her favour.
The Court determines otherwise that GG Limited shall receive a payment on behalf of the husband of $115,000 in partial satisfaction of GG Limited’s claim against him for the reasons as set out above.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 6 November 2024
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