Czeb and Czeb

[2011] FamCA 87

FAMILY COURT OF AUSTRALIA

CZEB & CZEB [2011] FamCA 87

FAMILY LAW – PROPERTY SETTLEMENT – Where Wife has been primary income earner – Where parties have made equal contributions as home maker and parents – Where Husband incarcerated for 17 and a half years for serious injury caused to Wife after the parties’ separation – Husband’s claim for spouse maintenance rejected – Husband’s claim for more than 100 per cent of the property pool untenable - Property divided 60/40 as sought by Wife

APPLICANT: Ms Czeb

RESPONDENT: Mr Czeb

FILE NUMBER: SYC 7329 of 2008

DATE DELIVERED: 23 February 2011

PLACE DELIVERED:

Brisbane

In Chambers

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 18 -19 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Pigott Stinson Lawyers

COUNSEL FOR THE RESPONDENT: The Respondent Husband appearing in person

Orders

IT IS ORDERED THAT:

1. Within ninety (90) days hereof the Wife pay to the Husband a sum as calculated by reference to paragraph 96 of the reasons for judgment dated

   
   

   23 February 2011.

2. Contemporaneously with the said payment in paragraph (1) hereof, the Husband do all acts and things and sign all documents necessary to transfer to the Wife the whole of his right, title and interest in the property situated at and known as H property, more particularly described in Folio Identifier …, subject to encumbrances.

3. Contemporaneously with the said payment in paragraph (1) hereof, the parties do all acts and things and sign all documents necessary to cause the mortgage registered over the said property to be refinanced so that the Wife alone is responsible for that liability.

4. Otherwise than as provided for in these Orders the Court declares that each party is entitled to be the sole legal and beneficial owner of all other property including but not limited to superannuation currently in his or her possession and/or control free from any interest of the other party and shall indemnify the other party in relation to any and all debts attaching thereto.

5. The Husband and Wife do all acts and things and sign all documents and give all consents as may be necessary to fully implement these Orders.

6. If either party fails or neglects to sign or execute any document, instrument or writing after fourteen (14) days of being required to do so, the Registrar of the Family Court of Australia, Sydney Registry, is empowered under s 106A of the Family Law Act 1975 to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the Orders herein.

7. The Husband’s application for spouse maintenance is dismissed.

8. The Wife’s legal representatives are given leave to file and serve written submissions on the issue of costs within seven days (7) of the date of delivery of judgment and that seven (7) days after receipt, the Husband to file and serve submissions on the issue of costs.

9. The Wife is given leave to present evidence within seven (7) days of the

   
   

   23 February 2011, as to whether she has made any payments on the mortgage since the date of hearing which she wishes to be taken into account in determining the amount to be paid to the Respondent.

IT IS FURTHER ORDERED THAT:

1. All outstanding applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC7329/2008

MS CZEB

Applicant

And

MR CZEB

Respondent

REASONS FOR JUDGMENT

1. The Applicant Wife (Ms Czeb) relies upon the following material (refer case summary document dated 17 November 2010):

   ·Initiating application filed 10 December 2008;

   ·Amended initiating application filed 22 August 2009;

   ·Financial questionnaire filed 22 June 2009;

   ·Affidavit sworn 5 February 2010;

   ·Financial statement sworn 27 August 2009, filed on 8 September 2009;

   ·

   Affidavit of Mr B sworn 20 September 2009, filed on

   
   

   1 October 2009;

   ·Notice disputing facts sworn on 26 March 2010 but not filed.

2. The documents relied on by the Respondent Husband (Mr Czeb) (who was not legally represented) are listed on page 16 of a document headed “Closing Argument; Submissions by the Respondent”.  They are as follows:

   ·Response to initiating application filed 17 April 2009;

   ·Financial statement filed 17 April 2009;

   ·Financial questionnaire dated 27 May 2009;

   ·Response to initiating application amended 19 August 2009;

   ·Financial statement amended 19 August 2009;

   ·Affidavit dated 9 February 2009;

   ·Notice to admit filed 18 March 2010 (as the Applicant Wife did not admit any of the matters put to her this document has no relevance);

   ·Financial questionnaire amended 18 March 2010;

   ·Affidavit filed 6 May 2010;

   ·Response to initiating application amended 6 May 2010.

3. The only witnesses in the Applicant’s case were the wife herself and the valuer of the former matrimonial home, a Mr B.  The husband was the only witness in his case.

ORDERS SOUGHT

Applicant

1. During the course of the hearing Counsel for the wife handed up amended orders as sought by his client.  In her initial application filed on 10 December 2008 she sought that the assets of the parties be divided 70/30 in her favour with each party to pay their own costs.  She subsequently filed an amended application in August 2009 in which she sought that the assets of the parties be divided 60/40 in her favour with each party to pay their own costs.

2. By way of the amendments sought during the hearing it was proposed that there be an order that she pay to the husband a fixed sum of $165,470 and that he pay her costs of and incidental to the proceedings.  The fixed sum was calculated by taking the current value of the former matrimonial home less the current mortgage and awarding the husband 40 per cent thereof.  It was inherent in this amendment that all other assets and liabilities be disregarded.

3. I will deal with the liabilities and other minor assets and contingent assets later in these reasons.

Respondent

1. In his initial material the husband sought orders that the wife transfer the former matrimonial home to him; that she pay him an additional cash adjustment of $250,000 and she pay $250 a week for a period of two years by way of spouse maintenance.    

2. At paragraph 98 of the closing argument document the husband calculates the wife would receive about $186,000 which consisted of $505,000 of assets which he particularises and liabilities of about $319,000.  The wife denies the claims of assets held overseas and claims as to an entitlement in an inheritance.

3. After the wife’s Counsel amended the orders sought by his client on the second day of the hearing, the husband indicated he wished to amend the orders he was seeking.  He was seeking full ownership of the former matrimonial home together with the contents, a cash payment of $100,000 and a payment of $250 a week for two years or $25,000 by way of a lump sum and in addition the wife was to be responsible for liabilities attaching to the property including Council rates and other charges.

BACKGROUND FACTS

1. The parties were each born in Eastern Europe, the husband in 1960 and the wife in 1961.  The relationship initially commenced in about 1979.  They married in 1985 and separated on 30 October 2006, although the parties did meet from time to time thereafter.  A divorce was granted on 16 December 2007.  There is one child of the relationship, born in 1985.  She is a student and lives with her mother.

2. The husband was qualified in a profession in Eastern Europe and worked for a period of time in Eastern Europe.  The wife was also qualified in a profession in Eastern Europe but as with the husband is unable to work in that profession in this country.

3. In 1991 the family moved to Scandinavia to escape the conflict in their country at that time.

4. The wife obtained work in Scandinavia with a pharmaceutical company in 1993.  In early 1997 the husband travelled to the United Kingdom for a year to study for a Masters Degree.

5. The above summary is largely taken from page 1 of the wife’s case summary.  Based on other material filed I accept the accuracy of this account.

6. The parties eventually migrated to Australia in 1998 and became citizens in the year 2000.

7. At the time of their arrival in Australia it would seem that the parties had about $30,000 in assets, principally in cash.

8. Without accepting that the contributions at that point in time were equal the wife was prepared not to challenge the husband’s assertion that this was so.

9. The wife’s contention was that they had taken limited funds to Scandinavia.  She had been the main income earner during the period in Scandinavia whilst the husband undertook further studies.  The further studies of a formal nature appear to have been limited to the twelve months spent in the United Kingdom.

10. Although the parties were unable to have their professional qualifications recognised in this country the wife has worked in relatively high paying positions relying on her expertise in the field.  She deposes that shortly after her arrival she obtained work as a senior consultant with an income of $65,000 together with superannuation.  In September 1998 her income was increased to $90,000 together with superannuation, a motor vehicle and employee shares.

11. In 1999 the parties acquired the former matrimonial home in H for $290,000 with a significant cash deposit and a bank loan for the balance.

12. This remains the major asset of the parties.

13. The wife’s evidence, which I accept, is that the husband was unwilling to work in an employed capacity for the reasons she deposes to in her affidavit.

14. The parties commenced a business, C Business, in about 1999.  At paragraph 10 of her case summary document the wife asserts that this business was not profitable and the living expenses of the parties had to be subsidised with Centrelink benefits and the sale of some of her shares to the extent of about $75,000.  It is not clear whether these shares were part of her remuneration package while she worked for this company in Scandinavia or whether she elected to purchase shares whilst so employed.  The husband was additionally undertaking studies and in 2004 obtained a Diploma from Sydney University.  Exactly what this qualifies the husband to do was not made clear but as events have transpired this aspect is not greatly relevant.

15. In 2006 the wife returned to her employment with N Company (refer to her affidavit paragraph 33).  She worked for another company in October 2006 and then commenced her present employment.

Applicant’s Current Position

1. The wife’s oral evidence to the Court when clarification was sought on this issue was that her employment produces an income of $150,000 a year together with superannuation payments based on 9 per cent of her salary.  In addition, she has been doing contract work.  The contract was for $160,000 per year.  The contract commenced in February 2010 and was due to be completed at the end of November 2010.  This additional income was not disclosed in her initial financial statement filed on her behalf but was clarified by a letter to the husband by her solicitors dated 28 April 2010 (exhibit 5).

2. The wife’s evidence was that she took on the second position to assist her in paying legal fees and assist her with mortgage payments as the husband has not rendered any assistance by way of mortgage payments since the time of his incarceration in June 2007.

Respondent’s Current Position 

1. The husband is currently serving a sentence of 17 years imprisonment for a crime against the wife committed in 2007.  He was convicted in the District Court in Sydney in 2009.  He appealed his convictions to the New South Wales Court of Criminal Appeal.  A search of the relevant law reports reveals the appeal was dismissed in 2010. This has been confirmed by a letter forwarded to the Court by the wife’s legal representatives.

2. The husband indicated that in the event his appeal was unsuccessful he intended to seek leave to appeal to the High Court.

3. One of the items in his list of assets which he asks to be brought into account is a notional sum of $50,000 which he estimates will be the compensation the wife will receive under the Victims of Crime legislation in New South Wales as a result of the incident which occurred in 2007.

4. It is difficult to contemplate the perversity of a submission in these terms that a criminal can seriously injure his wife and then seek to receive some or all of the proceeds of her compensation claim presumably on the basis he made a contribution to the gaining of the asset.

APPLICANT’S CASE

Value of the H Property

1. The wife relied on an affidavit of Mr B, a registered valuer, filed

   
   

   on 1 October 2009.  In his report annexed to that affidavit he values the H property at $635,000 as at 14 September 2009.

2. In his closing argument document (paragraph 98) the husband does not challenge this assessment.  I note at paragraphs 181 and 182 of his affidavit filed 6 May 2010 the husband asserts the property was for sale for $750,000 as at May 2005.  It is to state the obvious that the listing price of a property is never evidence of its value until it is sold.

3. In paragraph 182 of his affidavit he estimates the current value of the property at about $800,000.  There is no evidence from a registered valuer, a real estate agent or any other person having any level of expertise in the valuation of real estate to support this claim by the Respondent.

4. I note that in his financial statement of the 9 August 2009 and filed on the

   
   

   19 August 2009 he values the subject property at $900,000.  It is just one of the many inconsistencies in the husband’s evidence that in 2009 he should assert the value of the property is $900,000 yet the following year he swears an affidavit it is valued at $800,000 and in his latest document appears to accept the figure of $635,000.

5. It was the wife’s contention that between the date of the original valuation and the hearing over 12 months later the property had reduced in value.

6. Exhibit 2 was an updated report by the valuer dated 18 November 2010 in which he values the property at $620,000.

7. He notes at page 1 of his report:

   “General Remarks

   The improvements which have now been vacant for approximately three years, can now be described as being in fair condition externally, and in reasonable condition internally.  Since the date of our previous valuation, the overall presentation of the property has deteriorated with the lining on the underneath side of the front deck that previously required fixing now no longer being in place, with the exception of a small section in front of the garage, some sections of timber trimming on the front deck are missing, the aluminium/glass balustrading now requires repair in one section, while the other items as noted previously also remain outstanding.  In addition, external painting of the premises is now required with the garden and yard area reflecting the property’s vacancy.”

8. Mr B gave his evidence to the Court by way of phone link up.  In the course of cross examination the husband challenged the valuation but to little meaningful effect.

9. I accept the evidence of Mr B as to the reduction in value of the property and his explanation for this.

10. For reasons to be given shortly I propose to find that the parties should bear responsibility equally for the fact the property has not been let for the past three and a half years and they should also each be responsible for the deterioration in condition of the property.  

APPLICANT’S EVIDENCE – AFFIDAVIT SWORN AND FILED
5 FEBRUARY 2010

1. At paragraph 2 of her affidavit she notes:

   “2.      I am not in good emotional health.”

2. Having had the opportunity to observe the wife in the course of giving her evidence I accept this is so.  It is somewhat unfortunate that medical reports of the physical injuries she sustained and any consequent emotional damage were not presented but in the circumstances of the wife’s modest claim I do not need any such evidence.

3. At paragraph 10 of her affidavit she deposes:

   10.From the moment that we commenced cohabitation, [the husband’s] dark side of his personality came through.  First, the verbal abuse started.  From there, very quickly it degenerated into physical abuse including, hitting, kicking, throwing me on the floor and hitting me.  He would also throw things and break them around me.  It just worse from there (sic).  I have suffered over the years from a broken nose, broken ribs, cut above the right eyebrow and bruising.  I did not report the violence to the police.  I left home many times for days at a time staying in local hotels and on one occasion, a women’s refuge in […].  He also hit [the child] numerous times, cut her clothes up and broke her belongings.  He cut the head off her doll.  I do not want to say much more than this other then the incident that I refer to below because of the traumatic nature of the memories that this raises for me.  The violence just simply, never stopped.

4. The husband, in the course of cross examination asserted that 98 per cent to 99 per cent of the allegations made by the wife of violence were false.

5. Her evidence as to domestic violence is corroborated by her daughter.  The daughter’s statement to the police and her statement in an affidavit to this Court were annexed to the husband’s affidavit (refer pages 33 and 50 of 168).

6. The husband displayed no remorse towards the wife for his conduct which resulted in the injuries she sustained.  He exhibited no empathy.  He maintains his innocence and is angry at the convictions recorded against him.

7. I accept her evidence that at the commencement of cohabitation the parties had minimal assets.

8. In November 1991 the parties moved to Scandinavia as refugees from the conflict in Eastern Europe at the time.  I accept the wife’s evidence she supported the family through her employment by a pharmaceutical company.  Her evidence is that the husband did not work during the period in Scandinavia other than for a brief period of about three months.

9. At paragraph 20 of her affidavit she deposes:

   “20.In January 1997 [the husband] left [Scandinavia] to live in the United Kingdom where he commenced a full time Master [Degree] [in the United Kingdom].  He was gone for the entire year.  The cost of his degree was approximately $25,000 which I paid for from my earnings.”

10. At paragraph 37 of her affidavit she deposes that after the assault incident in 2007:

    “37.I returned to work on about the 25 July 2007.  I have continued to experience physical and psychological symptoms since the attack including constant aching of various parts of my body.  I have pain management to help me with my injuries including physiotherapy and medication.  I also have deep wound marks.  I see a psychologist whose name I do not wish to mention for safety reasons, now on an irregular basis.  At first the appointments were twice a week.”

11. I found the wife to be an honest and convincing witness.  I have no hesitation in accepting her account of events as set out in her affidavit and financial statements.

RESPONDENT’S CASE

1. To understand the husband’s material it is necessary to make reference to a document headed “Agreement” which is annexure 1 to his affidavit sworn

   
   

   29 April 2010.  In this affidavit the husband deposes at paragraph 125 that he read the terms of the agreement to the wife shortly prior to the assault incident.  ….

2. The husband has been in custody since the date of the assault incident. 

3. The material terms of the agreement are as follows:

   “- - -

   Agreement

   5.I, [the wife] agree to:

   a.Transfer the current joint ownership of the property, held between me and [the husband], to full ownership of the husband;

   Pay [the husband] AU$250,000, which I will deposit on his Commonwealth Bank of Australia account number […];

   b.The AU$250,000 I will obtain as a personal loan or other applicable loan, either with the Commonwealth Bank of Australia or Westpac Banking Corporation Australia;

   c.Upon the transfer of the ownership and payment of the AU$250,000 to [the husband’s] account, I will not have any interest in, claims and demands for the property whatsoever.

   d.Be cooperative and proactive to finalise this agreement by the Friday, 08 June 2007.”

1. In an application in a case filed on 10 November 2010 he sought that the order which required officers of Corrective Services Department to bring him to Court be cancelled.  He sought that the documents headed “Opening Address” and “Closing Argument” be read and accepted by the Court in lieu of any oral submissions.

2. The effect of his supporting affidavit was that because of a lack of sleep:

   “In terms to the hearing scheduled at the Family Court scheduled for
   19 and 20 November (actual dates were 18 and 19 November 2010) I feel that I would not be able to cope with the emotional pressure of cross examination of my former wife.”

3. Notwithstanding this last minute application, the husband did appear and did cross examine the wife.  His own evidence was that in the course of the criminal trial which extended over some 11 weeks he cross examined the wife through the services of a Court Registrar for about five or six days.  He presented a four page written submission that he not be present in Court.  As he was present in Court and his application was premised on his being excused from attending, he did not seek to address those submissions.

4. In his “Opening Address” document he states:

   - - -

   3.The principal order I seek is related to the agreement, which [the wife] and I reached [in] June 2007 after our separation, related to the settlement of our marriage.  According to that agreement [the wife] was to give me her half of the matrimonial property in [H] and $250,000, in total about $700,000.  I primarily seek this order to be enforced by the court.  Subject to that order, the other issues may not be relevant, but I will outline them classified in 4 groups.

   4.First is related to the property pool.  Due to undisclosed assets and alleged debts, [the wife] has diminished the property pool      significantly.

   5.Second is about the percentage of entitlement to the matrimonial property.  As to the contribution factors, according to well-established principles in the Family Law based on my: initial contribution, long marriage, the real and personal property we acquired in our marriage, and negative contributions of [the wife], I am entitled to at least 60%. In addition, “a very significant I am entitled to at least 60%.  In addition, “a very significant adjustment [of 40-50% in my favour] is warranted” due to “significant disparity in [our] earning capacities” and “comparatively modest pool of assets.”  This means that I am entitled to the entire property.

   6.Third, I also seek maintenance, periodic, $250 per week for
   2 years, or in alternative a lump-sum of $25,000.

   7.Finally, the supplementary order I seek is related to the mortgage on the matrimonial property in [H].  It is based on the new facts about [the wife’s] financial circumstances, which she disclosed after I had amended my Response to Initiating Application on 29 April 2010.  The order is that [the wife] “contribute [$100,000] towards the reduction of the [mortgage within 3 months after the court orders].

   8.The orders I propose are subject to the principal order I seek      related to the agreement.  The alternative orders I propose are less than my entitlement to the property, either pursuant to the agreement or s 79 of the Act.  I propose these orders as a compromise, balancing my entitlement with the overall circumstances in this case.

PROPERTY SETTLEMENT APPLICATIONS – GENERAL METHODOLOGY

1. The determination of an application under s 79 involves a consideration of four separate factors being:

   ·Assess the extent of the property of the parties and ascribe a value to same;

   ·Consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character and contributions to the welfare of the family, including contributions as homemaker and parent (see s 79(4)(a),(b) and (c);

   ·Consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity actual and potential as required by the terms of s 75(2);

   ·Consider the effect of the above findings and be satisfied that the overall result is a just and equitable one.

2. The position adopted by the husband is so untenable as to not warrant consideration.

3. In effect he proposes he receive the whole of the proceeds of the former matrimonial home and in addition the wife pay him the sum of $100,000, presumably in reduction of the mortgage on the property.  I am not prepared to make any finding in terms of the allegations made that the wife has undisclosed assets or is the beneficiary of any inheritance.

4. Where, as here, there has been a lengthy marriage and there are no dependent children it may seem a just and equitable outcome for the assets to be divided equally.  However each case has to be assessed on its own particular merits.

5. For her part, the wife seeks an order that she receive 60 per cent of the equity in the former matrimonial home and all other assets and liabilities remain where they currently lie.

6. The reasons why the wife seeks a 10 per cent weighting in her favour include:

   ·She has been the primary bread winner.  I accept her evidence that the capacity of the husband to earn income was affected by his failure to work in an employee role other than for relatively brief periods of time, whether in Scandinavia or in Australia.  When, largely at his instigation, the parties commenced their own business operation, the venture did not produce any significant income.  The wife’s affidavit (paragraph 27) would indicate that the business produced approximately $25,000 over a 20 month period and that whilst operating the business the parties had recourse to receipt of Centrelink benefits.

7. If there was reliable evidence the husband engaged in home duties and had the major role in the raising of their daughter this would, in large measure, balance the wife’s contribution as the principal bread winner and the husband’s almost complete failure to contribute as a bread winner.  There is no such evidence which I would be willing to accept.  I place no reliance on the husband’s claims unless they are corroborated by some independent source.  His account of events is a mixture of confused thinking, hyperbole and unsubstantiated allegations.

8. I note that in her financial questionnaire the wife when dealing with

   
   

   non-financial contributions (paragraph 6 at page 3) notes:

   “This was an equal contribution.”

   With this concession by the wife, the position is she was far and away the primary income earner for the family and in addition shared equally in the role of home maker and parent.

CREDIBILITY OF RESPONDENT

1. At paragraph 226 of his affidavit under the heading “Property Pool” the husband asserts that the gross value of their property $1.15 million with a net property value of about $925,000.

2. This assertion is a significant over estimate of the figures set out at page 15 of the closing argument document.

3. Many of the annexures to the husband’s affidavit are of little evidentiary value.  Some are in the Serbian language with no accompanying translation.  There is as annexure 2 a number of emails with specialist medical information which without further evidence seemingly have no probative value.  There are numerous emails which appear to have little relevance.  The attachment of transcripts appears to be selective in the extreme.

PAYMENT OF MORTGAGE POST SEPARATION

1. There is evidence that the wife has made payments on the mortgage instalments on the home since the date of separation.

2. In her financial statement filed on 10 December 2008 (sworn 9 December 2008) she discloses that her liability on the home is $110,978 resulting in an overall liability of $221,956.

3. There was no challenge to this evidence by the husband.  The figures produced by the wife’s Counsel reveal that the current mortgage liability as at 18 November 2010 was $206,326. 

4. The husband has made no contribution towards the outgoings on the property by payment of rates or mortgage at the very least since his incarceration in June 2007.

POOL OF ASSETS

1. At page 4 of the wife’s case summary document dated the 17 November 2010 the net property pool is said to be $299,987.  In a further document headed “Applicant’s Updated Schedule of Assets & Liabilities” produced by the wife’s Counsel in the course of his final submissions the figures provided were in the following terms:

   Item  Wife’s figure

   [H property]  620,000

   Mortgage  (206,326)

   Net property  413,674

   40% to husband  165,470

   Items not included in pool

   Bank savings W   2,500

   Bank savings H        800

   Furniture (offset inter alia by unpaid legals)           10,000

   Motor vehicle W  45,000

   Car loan (offset by motor vehicle)  (52,000)

   Computer & wrist watch (not valued)   NIL

   Alleged inheritance W (denied)   NIL

   [C Business]   NIL

   Credit cards W (post separation)  (71,495)

   Personal loan W (post separation)  (57,192)

   Unpaid legals W (offset by items excluded

   above)  (21,000)

   Superannuation W (vast majority post

   separation)   77,656

2. I make the following observations in relation to the figures produced by Counsel.

APPLICANT’S SUPERANNUATION

1. The evidence would indicate the wife’s superannuation fund has been largely accumulated post-separation.  In her financial statement filed on 10 December 2008 her superannuation entitlement at that point in time was disclosed as $20,922.  There was no challenge to this figure.  At the date of hearing the superannuation entitlement was disclosed at $77,656.  The finding is irresistible that the majority of the wife’s superannuation has been accumulated post-separation with no contribution of any kind made by the husband.

2. The only reason the husband does not have superannuation is he has not been prepared to work in an employed capacity or to operate a business successfully.  He has not been able to accrue superannuation benefits for the last three and a half years as he has been incarcerated – a circumstance for which he must take full responsibility.

LIABILITIES

1. Most of the wife’s liabilities relate to legal fees.  They are not relevant to be brought into account at this point in time.

2. The wife’s motor vehicle is matched in value by the loan used to purchase the vehicle.

VALUE OF THE BUSINESS OPERATED BY THE PARTIES

1. There is no evidence the company C Business has any value. 

OTHER ASSETS

1. As listed, the other assets include modest bank savings and furniture of a modest amount.  There has been no attempt to value these items.  I do not propose to bring these items into account and accept the submissions by Counsel for the wife in this regard.

APPLICATION OF THE KENNON  PRINCIPLE

1. In In the Marriage of Kennon 1997 22 Fam LR 1 the majority of the Full Court (Nicholson CJ and Fogarty J) set out in considerable detail circumstances in which issues of domestic violence may be relevant when a Court is required to determine property settlement issues. The principle is expressed in the following passage:

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

2. As noted earlier the wife alleges prolonged domestic violence over extended periods.  In this regard as I have noted her evidence is strongly corroborated by the evidence of her daughter.  I am satisfied there has been ongoing domestic violence.

3. The husband annexes a transcript of evidence at the criminal trial of two witnesses, Mr F and Ms C.  Mr F has known the parties for seven or eight years when they lived in the H area (refer page 109/168 of annexures to the husband’s affidavit).  Ms C (refer page 114/168 of annexures) was a neighbour in the parties’ street.  Neither witness observed incidents of domestic violence and each gave evidence of observing the parties residing in a relatively harmonious lifestyle.  The evidence of these witnesses is not to say domestic violence did not occur, but simply that they did not observe same.  I am not persuaded by a perusal of their oral evidence to reject the evidence of the wife and the parties’ child of domestic violence over a prolonged period of time.

4. A finding under the Kennon principle is not greatly relevant as I would be prepared to award the Applicant 60 per cent on account of her contributions as primary income earner and the fact that she shared equally in the home maker/parent role.  I would be prepared to find that her contributions in all aspects of the relationship were made more arduous as a result of being subjected to the violent behaviour of the husband.

5. The evidence would indicate it has not impacted on her income earning capacity.  I find it is not necessary to consider what further percentage entitlement should be made on account of the Kennon principle.  The Applicant only seeks an order for 60 per cent of the property pool.  I would be prepared to award her this amount without taking any account of the Kennon principle.

6. It has crossed my mind to award to the Applicant a percentage distribution greater than that which she seeks, but in the whole of the circumstances, I have decided not to adopt this course.

WHETHER ANY ADJUSTMENT SHOULD BE MADE ON ACCOUNT OF THE EVENTS OF JUNE 2007

1. I do not propose to make any further adjustment on account of the shocking events for which the Respondent has been convicted.  In the event that the wife wished to institute proceedings for damages for assault in the civil courts, she has been at liberty to do so.  It may be that her claim is now statute barred but she could seek leave to extend the time in which to institute proceedings.

2. Whilst I note the seriousness of the injuries and the consequences to her, it is not for this Court to make any further adjustment as a result of same pursuant to the principles of s 79, particularly, where, as here, no medical evidence of any kind has been placed before the Court.  It may well be this Court could award “special damages” limited to loss of wages, physiotherapy treatment, psychological counselling and such like but, again, the Applicant has not elected to adduce such evidence.

RESPONDENT NOT BEING LEGALLY REPRESENTED

1. Notwithstanding the fact he did not have legal representation in the property settlement proceedings I note that the husband is well educated and has been awarded a Diploma in a legal field from a University.  At page 1 of his closing argument he refers to about thirty of the leading cases in family law on property settlement issues.  I find his application of the principles governing property settlement is misguided, but there was no indication he was in any way prejudiced in the presentation of his case by the lack of legal representation.

SECTION 79

1. I propose to accede to the wife’s application that she be awarded 60 per cent of the property pool confined to the equity in the former matrimonial home.

2. My reasons for doing so, in summary form are as follows:

   ·She has been far and away the primary income earner for the household throughout the lengthy period of the marriage.

   ·At paragraph 295 of his affidavit when dealing with s 75(2) matters the husband deposes:

   295.    Limitations for my employment, I believe, are that:

   (a)I was unemployed since 1991 apart from eight months in 1998/1999;

   (b)The professional and social stigma due to the incident and imprisonment; and

   (c)[The wife’s] false allegations about our relationship.

   ·Clearly this is a concession made against interest by the Respondent that he produced very little income for the household.  I expect by dint of her industrious manner and the violent controlling manner of the husband that at the very least the wife would have carried out 50 per cent of the duties of home maker and parent.

   ·The wife has made contributions to the mortgage with no assistance of any kind over the period since the husband’s incarceration in June 2007.

   ·

   To the extent that on review it may be thought that because of the significant imbalance in income that 60 per cent is an excessive award to the wife I would be prepared to invoke the principles in the Kennon case as detailed above by awarding her a minimum of an additional

   
   

   10 per cent.

FACTORS PURSUANT TO SECTION 75(2)

1. I do not propose to make any further adjustment on account of s 75(2) factors.  I accept that the wife’s income is likely to be $150,000 a year for the foreseeable future.  She has taken on a separate contract to assist in payment of legal fees but there is no evidence that this contract will be renewed.  Whilst in normal circumstances where one party has little or no income and the other party has a substantial income, an adjustment for s 75(2) factors may be called for however; I take into account the fact that the husband has no expenses of any kind for the next ten years.

ORDER SOUGHT BY APPLICANT FOR PAYMENT OF SUM CERTAIN OF $165,470

1. This amount as nominated by the wife’s Counsel reflected the mortgage debt at the time of the hearing.  Unfortunately I have not been in a position to deliver a judgment in this matter for a period of three months.

2. It may be that the wife has made mortgage instalments on the property in the mean time or the mortgage is now greater in value because neither party has been making any contribution to same and the property has remain untenanted.

3. I propose to make an order that the wife pay the husband 40 per cent calculated using the formula 40 per cent of A – (B + C) where:

   A   =        $620,000

   B=         the value of the mortgage as at 23 February 2011   less any amount paid by the wife in reduction of                 the mortgage from 19 November 2010 to the 23                    February 2011.

   C  =         arrears of rates and local government charges.

4. The view that I have formed is that the parties should share equally in the diminution in value of the home:

   ·The rates are in arrears.

   ·The house has deteriorated in value over the last three years, largely because it has been unoccupied.

   ·The house has not been income producing for three and a half years.

5. The reasons why I find the parties should share equally in these factors is the husband has placed himself in a position where he has been unable to assist in the payment of rates or mortgage instalments.  However, in relation to the letting of the property, he could have written to the wife’s solicitors giving her full authority to lease the premises.  There is no evidence he has done so.

6. The wife for her part could have instructed her solicitors to negotiate with the husband (without any recourse to her if the negotiations were protracted or unsuccessful).  In the alternative she could have simply instructed her solicitors to bring an application to this Court giving her sole authority to lease the premises.

SPOUSE MAINTENANCE

1. There is an air of unreality about the Respondent’s claim for spouse maintenance.  He makes a claim for $250 a week for a period of two years.  The first and obvious observation to make is he is in an environment where he pays no rent and receives three meals a day.  In effect for the next ten years it is likely he will be supported by the tax payer.

2. In his affidavit (paragraphs 307 and 308 under the heading “Maintenance of the Spouse”) he deposes:

   307.I refer to the maintenance particulars which I stated in my financial statement – amended, sworn on 9 August and filed on 18 August 2009, Part N and O, page 11 and 12.

   308.My claim for maintenance of $1,500 per week is for eight years.  That amount is less than the income I had between January and August 1999 ($1,700 per week net, paragraph 249 and 250).  It is also the standard of living [the wife] and I had before the separation in 2006.

   - - -

1. Under Part N of the financial statement to which the husband makes reference he sets out his average weekly expenses.  It is to be noted that these are weekly expenses as at the date of swearing the document which is a time when he had already been convicted.  He was convicted in 2009 and the financial statement is sworn two days later.

2. He claims $100 a week for food, $400 a week for educational expenses and $100 a week for petrol.  As with the bulk of his evidence I can place no reliance on these inflated unrealistic claims made by the Respondent.  In view of the fact that his appeal has been dismissed, I find that in his present circumstances he has no need for spouse maintenance.  The question of the wife’s capacity to meet payments of spouse maintenance does not arise in these circumstances. 

3. Case law indicates the Court should determine property settlement issues first before then moving to a consideration of spouse maintenance.  As a result of the wife’s proposal, the husband will receive approximately $165,000 with the possibility this may be reduced by an award of costs.  It is likely he would have these funds from the property settlement to either invest or assist with out of pocket expenses he may have in the next ten years.

4. In the unlikely event that the husband is able to obtain special leave to appeal his criminal conviction to the High Court and is successful in any subsequent appeal, he may elect to revisit the issue of spouse maintenance if he is able to demonstrate he is otherwise unable to support himself.  At the present time for the reasons given, I propose to dismiss his application for spouse maintenance.

HUSBAND’S OUTSTANDING APPLICATIONS IN A CASE

1. The husband has filed three applications in a case on 18 March 2010, 7 May 2010 and 10 November 2010.

2. There was no attempt by him during the course of the two day hearing before me to prosecute any of the matters set out in those applications.  In summary form, the applications relate to:

   18 March 2010

   ·A review of a Registrar’s decision declining leave to file an affidavit in reply;

   ·An order for the applicant to file her last three tax returns, documents revealing the value of superannuation interest and details of her current employment and:

   - - - any benefits/entitlements form (sic) her present and past employments since 2006.

   ·He sought that he be excused from filing any required response for a period of at least 28 days.

   ·That evidence given by certain witnesses at the District Court be adduced in the Family Court proceedings without calling those witnesses.

   ·That the hearing dates for trial scheduled for early June 2010 be vacated – it appears that this was done for one reason or another.

   ·An order for the husband to attend his adjourned trial in person.

   7 May 2010

   The husband sought a total of ten orders including:

   ·that the wife:

   Amend her Financial Statement - - -.

   ·The wife file another affidavit giving particulars in relation to her financial affairs.

   ·A request in general form for particulars.

   ·A request for photocopies of the original documents to be supplied.

   ·For various other financial documents to be supplied.

   ·He sought that documents annexed to his own affidavit which are in the Serbo-Croatian language be translated before the hearing scheduled for the hearing on 3 June 2010 to 4 June 2010, and that such translation be either at the Court’s cost or at the cost of the wife.

   11 November 2010

   ·This was the application where the husband sought that he be excused from attendance in person at the hearing and various other ancillary orders, in particular that the Court accept his opening address (two pages) and closing argument (sixteen pages) to be read and accepted by the Court instead of his oral submissions.

3. Nothing in these various applications has any relevance once the property settlement proceedings have been heard and determined.

4. I propose to make an order in general terms dismissing all outstanding applications.

COSTS

1. Counsel for the wife at the commencement of day two of the proceedings on the 19 November 2010 handed up a minute of amended orders.  For the first time the wife sought an order that the husband pay her costs of and incidental to the proceedings.

2. I propose to make an order that the wife’s legal representatives file and serve written submissions on the issue of costs within seven days of the date of delivery of judgment and that seven days after receipt of the wife’s submissions on costs the husband file and serve submissions on the issue of costs.

3. Pursuant to the terms of paragraph 96 hereof I give the Applicant leave to present evidence as to the current balance of the mortgage and whether she has made any payments on the mortgage since the date of hearing, for which she may now wish to seek reimbursement.

4. Orders are set out on page 2 of these reasons.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 23 February 2011.

Associate: 

Date:  23 February 2011