Dajani & Dajani
[2024] FedCFamC1F 605
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dajani & Dajani [2024] FedCFamC1F 605
File number(s): SYC 3672 of 2020 Judgment of: ALTOBELLI J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PROPERTY – Where the wife seeks a 70:30 split in her favour and the husband seeks a 60:40 split in his favour – Where there was a long marriage – Where the wife made submissions about her contributions citing Kennon & Kennon (1997) FLC 92-757 – Where the Court finds that the wife made greater contributions – Where the Court finds that the wife’s contributions were made significantly more arduous by the family violence perpetrated by the husband – Where a small adjustment is made in favour of the wife under s 75(2) of the Family Law Act 1975 (Cth) – Where the Court orders a division of property as to 62.5 per cent in the wife’s favour. Legislation: Evidence Act 1995 (Cth) ss 91, 135(a), 178
Family Law Act 1975 (Cth) ss 4AB, 75(2), 79, 114(1)(a)
Supreme Court (Criminal Appeal) Rules 2021 r 3.1
Crimes (Administration of Sentence) Act 1999 (NSW) s 77
Cases cited: Alston& Alston [2021] FedCFamC1A 96
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Baranski & Baranski [2012] FamCAFC 18
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633
Cirillo & Cirillo [2021] FedCFamC1A 45
Cisek & Farrah(No 2) [2023] FedCFamC1F 804
Crampton & Robinson(No 2) [2013] FamCA 856
Damiani & Damiani [2010] FamCA 217
Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162
Gadhavi & Gadhavi (2023) 67 Fam LR 174; [2023] FedCFamC1A 117
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Kozovska & Kozovski [2009] FMCAfam 1014
Lowe v Harrington (1997) FLC 92-747
M & M [1998] FamCA 42
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85
Martell & Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Patterson & Patterson (1979) FLC 90-705
S & S [2003] FamCA 905
Scaletta & Scaletta [2024] FedCFamC1A 87
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Willis & Willis [2007] FamCA 819
Division: Division 1 First Instance Number of paragraphs: 193 Date of last submission/s: 31 May 2024 Date of hearing: 22–24 and 26 April 2024 Place: Sydney Counsel for the Applicant: Ms Gerace SC Solicitor for the Applicant: Santone Lawyers Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Russell Kennedy Lawyers NSW ORDERS
SYC 3672 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAJANI
Applicant
AND: MR DAJANI
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The property situated at and known as C Street, Suburb D in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier Lot … Deposited Plan … (“the Suburb D property”) be sold in accordance with these orders.
2.The Applicant Wife (“the wife”) be appointed as trustee for herself and the Respondent Husband (“the husband”) for the sale of the Suburb D property pursuant to Order 3, up to and including settlement pursuant to Order 4.
3.The wife do all acts and things and sign all documents necessary to list for sale, and cause to be sold, the Suburb D property as follows:
(a)Within three business days of the date of the making of these orders, appoint a licenced real estate agent of her choice (“the agent”) to act as agent on the sale of the Suburb D property and execute all documents requested by the agent for the sale of the Suburb D property, including but not limited to the agent’s contract in its standard terms and with the standard fees (“the Agency Agreement”);
(b)As soon as it is practicable, organise repairs and/or improvements as advised by the agent in writing to ready the Suburb D property for sale at the wife’s expense in the first instance, to be adjusted on settlement pursuant to Order 4(d);
(c)Cause the Suburb D property to be marketed for sale (“the listing”), taking into account the agent’s recommendation in writing as to:
(i)Whether such listing is by way of private treaty or by way of auction; and
(ii)The listing/reserve price.
(d)Give instructions as are necessary to a legal practitioner or licensed conveyancer nominated by the wife to act on the sale (“the conveyancer”);
(e)In the event the Suburb D property is listed for auction pursuant to Order 3(c) (“the first auction”) and it does not sell, the wife will do all acts and things to cause the listing of the Suburb D property for sale by private treaty for a period of four weeks from the date of the auction (“the first private treaty period”), in which time any offer made to purchase the Suburb D property within five per cent of the reserve price of the first action will be accepted;
(f)In the event the Suburb D property is not sold at the first auction and is not sold in the first private treaty period, the wife will cause the Suburb D property to be listed for sale by further public auction with the agent on a date within six weeks of the date of the conclusion of the first private treaty period (“the second auction”) at such reserve price, taking into account the recommendation of the agent, provided that such auction falls not less than six weeks before 25 December and if it does not sell, the Suburb D property is to be listed for auction no later than1 February in the year immediately following;
(g)Attend (or have her nominee attend) any auction pursuant to these orders and in the event the reserve price set for that auction is not reached, negotiate with the highest bidder and the second highest bidder and accept the highest offer to purchase made within five per cent of the reserve price set for that auction;
(h)In the event that the Suburb D property is not sold at the second auction, as soon as practicable thereafter, cause the Suburb D property to be listed for sale on the same conditions as provided for in Order 3(f) and (g), successively until it is sold;
(i)Execute the contract for sale in the form advised by the conveyancer;
(j)Cooperate in every way with the agent in relation to the Suburb D property at all times requested by the agent and ensure that the Suburb D property is in a neat and clean condition; and
(k)Keep the husband informed of the progress of the sale, by instructing the agent to provide the husband, via an email or postal address nominated by the husband as soon as practicable, with:
(i)A copy of the signed Agency Agreement;
(ii)A copy of the final draft contract for sale;
(iii)The agent’s recommendations as to the method of sale and listing price;
(iv)Notice of any offers made by a prospective purchaser;
(v)Notice of the date, time and place of any auction; and
(vi)Notice of the outcome of any auction.
4.On settlement of the sale of the Suburb D property, the wife shall do all acts and things and give all instructions necessary to cause the distribution of the sale proceeds of the Suburb D property in the following manner and priority:
(a)In payment of the agent’s commission, marketing and advertising costs and auctioneer fees, and in reimbursement to the wife of any upfront marketing or other costs required by the agent;
(b)In payment of the legal or conveyancing costs of sale;
(c)In payment to the supplier of any unpaid costs of the preparation of the Suburb D property for sale, where such costs were incurred pursuant to Order 3(b) and verified by a tax invoice;
(d)In payment to the wife of such amount by way of reimbursement for any expense incurred pursuant to Order 3(b), paid by her in advance of the settlement of the sale and verified by tax invoice;
(e)Payment of any amount outstanding to any water authority or local council in respect of the Suburb D property, not otherwise taken up in favour of the vendor; and
(f)The amount then remaining to be divided between the parties, such as to achieve an overall division of the net matrimonial asset pool, in the following percentages:
(i)62.5 per cent to the wife; and
(ii)37.5 per cent to the husband, with the husband to provide the wife a cash adjustment, in a sum to be determined, if the amount then remaining is insufficient to achieve the 62.5:37.5 distribution of the net matrimonial asset pool in the wife’s favour.
5.Pending the sale and settlement of the Suburb D property pursuant to Orders 1–4, the parties equally bear the cost of all outgoings, rates, taxes, charges, insurances, mortgages, repairs, improvements and any other sums due or accruing in respect of it, with the exception of the repairs and improvements stipulated in Order 3(b).
6.Pending the parties’ compliance with Orders 1–4, the parties are restrained from encumbering, further encumbering or otherwise dealing with the Suburb D property other than in accordance with these orders.
7.The wife retains the following property to the exclusion of the husband:
(a)Her CBA account ending #89;
(b)Her CBA account ending #70;
(c)Her Super Fund 1 accounts ending #13 and #82;
(d)Her Motor Vehicle 1; and
(e)All jewellery in her possession.
8.The husband retains the following property to the exclusion of the wife:
(a)The crystal collection;
(b)All plant and equipment including the machinery located at the Suburb D property, subject to Orders 9–11 below;
(c)His Motor Vehicle 2;
(d)His F Bank Controlled Monies Account ending #06; and
(e)The Super Fund 1 accounts ending #81 and #83.
9.At least 35 days prior to the settlement date of the sale of the Suburb D property, the husband shall arrange for a third party to collect, at his expense, his personal property in their current state and condition from the shed, garage and garden area of the Suburb D property on a date and at a time as agreed in writing between the wife (or a nominated third party) and the husband’s legal representatives.
10.Failing the husband’s compliance with Order 9, the wife shall otherwise be permitted to sell, dispose of and/or retain any other personal property at the Suburb D property.
11.In the event the wife sells any personal property at the Suburb D property pursuant to Order 10, she shall pay to the husband the net proceeds of sale within seven days after the payment of reasonable expenses of the sale, removal and/or disposal of this property.
12.Simultaneously with the parties’ compliance with Order 4(f), the parties shall, at the expense of the husband, do all such things and sign all documents necessary to:
(a)Have the wife resign or have her removed from any positions held in the Dajani Family Trust; and
(b)Have the wife disclaim her interest and relinquish any entitlement as an object of the Dajani Family Trust.
13.From the date of these orders, the husband, whether in a personal capacity or as trustee of the Dajani Family Trust, shall indemnify the wife or cause her to be indemnified in relation to any liability to the Dajani Family Trust or for or in relation to her actions as director or in any other capacity or actions of the trustee.
14.The husband, whether in a personal capacity or as trustee of the Dajani Family Trust on the one part, and the wife on the other part, each jointly and severally release and forever release or discharge the other from any claim, action, suit or demand of any kind whatsoever that they have or may have against each other arising from the Dajani Family Trust.
15.Simultaneously with the parties’ compliance with Order 4(f), the parties shall do all such things and sign all documents necessary to:
(a)Remove the wife from any positions held in the company G Pty Ltd; and
(b)Disclaim her interest and relinquish any entitlement in G Pty Ltd.
16.From the date of these orders, the husband, whether in a personal capacity or as a director of G Pty Ltd shall indemnify the wife in relation to any liability to G Pty Ltd or for or in relation to her actions as a director or in any other capacity, or the actions of the directors and/or secretary.
17.Both the husband and the wife release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other.
18.Within 14 days of the date of these orders the parties shall each pay or cause to be paid the sum of $30,000 to each of the children, Mr B born in 1994 (“Mr B”) and Ms C born in 1996 (“Ms C”), to the effect that each child receives a total of $60,000.
19.The wife is declared to hold the following property on trust:
(a)The Motor Vehicle 3 for the benefit of Mr B; and
(b)The Motor Vehicle 4 for the benefit of Ms C.
20.Within 28 days of the date of these orders, the wife transfer, at her cost, legal title to the Motor Vehicle 3 and Motor Vehicle 4 to the beneficiaries named in Order 19.
21.Subject to the above orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his or her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his or her sole name; and
(c)All interests in life insurance policies and superannuation funds standing in his or her sole name.
22.Subject to the above orders, within seven days of the date of these orders, the parties shall do all acts including the signing of all documents to close and distribute the parties’ joint accounts, including the Super Fund 1 cash account ending #24 and any joint accounts not appearing on the balance sheet, as to 62.5 per cent in favour of the wife and 37.5 per in favour of the husband.
23.In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s 106A, a registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
24.Pursuant to s 114(1)(a) of the Family Law Act 1975 (Cth), the husband be and is hereby restrained from communicating with the wife directly or indirectly by any means whatsoever other than through his legal representatives.
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 Dajani & Dajani has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders the Court has made between the applicant wife (“the wife”) and the respondent husband (“the husband”) about alteration of property interests.
BACKGROUND
The wife is 62 years of age and is retired. The husband is 65 years of age and is also retired. The parties married in 1983, separated on 19 August 2019, and divorced in 2021. They are both originally from the Country J, are New Zealand citizens, and have resided in Australia since 2008. There are two adult children of the marriage, Mr B aged 30 (“Mr B”) and Ms C aged 28 (“Ms C”) (“the children”).
In mid-2019, the husband was arrested, taken into custody and charged with offences in relation to the sexual assault of Ms C, including when she was a child. The husband entered a plea of not guilty. After a criminal trial he was found guilty in relation to all charges and received an aggregate sentence of 17 years with a non-parole period of 12 years. His earliest release date is 2031. The husband filed a Notice of Intention to Appeal on 18 November 2022 (Exhibit R2) but has not yet filed an appeal. These issues will be discussed below.
In early 2013 the parties purchased a property at C Street, Suburb D New South Wales (“the Suburb D property”) for just under $1,700,000. Various renovations were carried out to the property in the period 2015 to 2019, organised by both parties. It is now worth approximately $4 million. The wife lived in the Suburb D property until mid-2021, after which she lived in rental accommodation. The parties were until recently both beneficiaries of the Dajani Family Trust (“the Trust”), which has a current value of $173,369. K Pty Ltd, of which the husband is sole director and shareholder, is the sole corporate trustee of the Trust and the husband is now the sole beneficiary of the Trust. Both parties own a vehicle and have cash savings. The husband owns plant and equipment including machinery (“the machinery”) worth $163,260. Each party has superannuation over $1.5 million. There are contended addbacks, and minimal liabilities.
This matter has a complex procedural history, owing to the husband’s criminal proceedings. The wife filed an Initiating Application on 10 June 2020. On 17 May 2022 the final hearing was listed for three days commencing 28 November 2022. On 31 October 2022, the final hearing was vacated after a request for an adjournment by the husband, to allow for the husband to be sentenced in the criminal proceedings and for any criminal appeal to be filed and heard (which was estimated to be at the end of 2022). The Court notes the wife opposed this request given the uncertainty of the timeline of the criminal proceedings. The matter was listed for mention in the new year to ascertain whether there was any more clarity regarding the husband’s criminal proceedings and to decide whether the matter should be re-listed for final hearing.
At the next Court event on 1 February 2023, the wife pressed for the allocation of final hearing dates, given that the matter had already been on foot for two and a half years, and the husband’s appeal would further delay the hearing of the matter by almost another year. The Court declined to do so, however, because this would cause injustice to the husband in circumstances where he was sentenced to incarceration with a non-parole period of 12 years and his solicitor told the Court that he had filed an “all-grounds appeal” that may be heard towards the end of 2023 at the earliest, the outcome of which would impact the Court’s determinations under s 75(2) of the Act. The Court notes the husband had in fact only filed a Notice of Intention to Appeal on 28 November 2022.
When the matter came back before the Court on 30 November 2023, the solicitor for the husband again requested a further adjournment until the finalisation of the criminal proceedings (including any appeal) due to the impact that the outcome of those proceedings would have on the Court’s determinations under s 75(2) of the Act. She indicated that the husband was in the process of obtaining new legal representation in respect of the criminal proceedings. The Court declined to grant the adjournment request in circumstances where the husband’s interests needed to be balanced with those of the wife. The matter was listed for final hearing on 22 April 2024. The husband filed a Notice of Appeal on 22 December 2023, seeking for the orders made 30 November 2023 to be dismissed and for the matter to be listed for mention after the hearing of the husband’s appeal in the criminal proceedings (which would be heard no earlier than March 2024). He filed a Notice of Discontinuance of that appeal on 19 January 2024.
The husband then filed an Application in a Proceeding on 27 March 2024 seeking for the final hearing to be vacated once again, because he had been transferred from one correctional facility to another and had not been able to properly confer with his legal representatives, give instructions, or prepare the required Court documents. The wife opposed this application. The matter was listed for mention on 9 April 2024 where I made orders pursuant to s 77 of the Crimes (Administration of Sentence) Act 1999 (NSW) for the husband to be produced to Court on 18 and 19 April 2024 in order for his legal representatives to obtain instructions and finalise his trial material. This occurred successfully and the application for an adjournment can be taken to have been abandoned.
In terms of the present proceedings the Court is satisfied that the husband has not been prejudiced by the fact that he is currently incarcerated. The Court accepts that there were likely some difficulties in communication between the husband and his legal representatives, but also acknowledges that his legal representatives were nevertheless able to prepare the husband’s case to a very high standard.
THE COMPETING PROPOSALS
In her Further Amended Initiating Application filed 2 April 2024, the wife proposes that she receive 70 per cent of the net matrimonial asset pool, for the Suburb D property to be sold, to be appointed trustee for herself and the husband for the sale of the Suburb D property, and for the husband to remove his personal property from the Suburb D property. She also seeks for the Court to declare that the parties hold the sum of $60,000 each on trust for Mr B and Ms C and that the husband instruct the trustee of the Trust to distribute this sum to them. There are further orders sought regarding Mr B and Ms B’s vehicles, indemnities and the wife’s removal from positions in the Trust and the company G Pty Ltd.
In his Further Amended Response to Initiating Application the husband proposes that he pay the wife a sum of money that effects a 60:40 split of the net matrimonial asset pool in his favour, and that the wife transfers to him all her right, title and interest in the Suburb D property. If the husband is unable to affect the 60:40 split, he proposes to sell the Suburb D property to pay that sum to the wife, with the balance being paid to himself. He also seeks for the wife to transfer her interest in all joint bank accounts to his name, with him to pay the wife an amount that represents 40 per cent of the balance held in each account. They are to otherwise retain any other property and interests in their names.
THE EVIDENCE BEFORE THE COURT
In support of her case, the wife relies upon the following material:
(a)Outline of Case Document filed 15 April 2024;
(b)Further Amended Initiating Application filed 2 April 2024;
(c)Her affidavit filed 4 April 2024;
(d)Affidavit of Mr B filed 2 April 2024;
(e)Affidavit of Ms L filed 2 April 2024;
(f)Affidavit of Ms N (redacted) filed 2 April 2024;
(g)Affidavit of Dr M filed 2 April 2024;
(h)Affidavit of Mr O filed 2 April 2024;
(i)Financial Statement filed 10 June 2020;
(j)Financial Statement filed 2 April 2024;
(k)Written submissions dated 13 May 2024;
(l)Written submissions in reply dated 31 May 2024; and
(m)Various documents tendered during the proceedings and marked as Exhibits A1–A57.
In support of his case, the husband relies upon the following material:
(a)Outline of Case Document received 26 April 2024;
(b)Further Amended Response to Initiating Application filed 19 April 2024;
(c)His affidavit filed 19 April 2024;
(d)Financial Statement filed 19 April 2024;
(e)Written submissions dated 29 May 2024; and
(f)Various documents tendered during the proceedings and marked as Exhibits R1–R60.
A joint balance sheet, which was provided to the Court on the fourth day of the final hearing, was tendered as the Court’s exhibit and marked as Exhibit C1. A document which was marked for identification as MFI1, the wife’s statement to police dated 21 August 2019, was later marked as an exhibit in chambers as Exhibit C2. The report of the wife’s psychologist, Ms N (“Ms N”), dated 27 November 2023 was also later marked in chambers as Exhibit C3.
Those cross-examined included the wife, the husband, the parties’ son Mr B, the wife’s medical specialist Ms L (“Ms L”), the wife’s General Practitioner Dr M (“Dr M”), and the wife’s psychologist Ms N.
Ruling on the tender of the “Sentence Remarks” from the husband’s criminal proceedings
The sentencing decision of Judge Flannery in the District Court of New South Wales was provisionally admitted as Exhibit A32 (“the Sentence Remarks”) after counsel for the husband objected to its tender, referring to s 91 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which states:
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
To rule on the objection, the document will be briefly described. Judge Flannery commenced her Sentence Remarks by reciting that on 11 April 2022 the offender (the husband in this case) was arraigned on an indictment containing multiple counts to which he pleaded not guilty to each count. A jury found him guilty of multiple counts. Judge Flannery recited that the offender was, therefore, to be sentenced for a number of offences, which carry a variety of maximum penalties ranging from seven years to life imprisonment.
It is agreed between the parties to the present case that the offender was the husband, the victim was Ms C, and that the husband was convicted and sentenced in relation to the counts referred to above. It is agreed that the wife was present during the delivery of the Sentence Remarks. The sentence imposed on the husband was also agreed. Indeed, a document setting out a summary of the convictions and sentence became Exhibit A33. A Certificate of Conviction under s 178 of the Evidence Act became Exhibit A31. The husband was sentenced for a period commencing 2019, expiring 2036. His non-parole period is 12 years, expiring 2031. The latter was acknowledged as being his earliest possible release date. Relevant factors in considering the admissibility of Exhibit A32 are the above agreed facts and Exhibits A31 and A33.
The Sentence Remarks is a 15-page document. Judge Flannery recites the facts, including the details of the offences perpetrated by the husband on Ms C. Her Honour summarises the Victim Impact Statement of Ms C, and the submissions made as to sentencing by counsel for the husband, as well as for the Crown. Judge Flannery then considers all of the above and formulates the sentence described above.
It is informative to explain what Exhibit A32 potentially adds to the evidence contained in Exhibits A31 and A33. The statement of facts provided by Judge Flannery provides details about the unlawful sexual acts perpetrated by the husband on Ms C, and a timeframe. The facts are confronting and reciting them in these reasons for judgment could be traumatising for any reader, let alone members of this family. By way of summary, Judge Flannery found in relation to one count that the husband committed unlawful sexual acts towards Ms C between the ages of eight and almost 16. The remaining counts cover the period in Ms C’s life between ages 15 or 16, to 22 or 23. Exhibit A32 also refers to the fact of the husband’s plea of not guilty. The Court notes, however, that this fact was accepted by the husband himself and, in any event, was self-evident.
From the wife’s perspective, the relevance and potential significance of this evidence is that it explains, or at least enables a reasonable inference to be drawn, what Ms C experienced at the hands of the husband, her challenging behavioural issues, and the wife’s efforts in managing these issues and parenting Ms C. The wife’s case recognises, as does the Court, that the wife did not become aware of the facts referred to above until the husband was arrested and charged.
In short, the wife contends that this evidence goes to the issue of how her contributions during and after the end of the relationship with the husband were rendered more arduous because of the family violence that was perpetrated by the husband against Ms C.
There is no doubt that the conviction and sentencing of the husband relates to conduct which is family violence as defined in section 4AB of the Act. His conduct was directed towards a member of his family, namely his daughter. As will be seen, and for reasons that will be explained, this Court will conclude that the husband’s violence towards Ms C rendered the wife’s contributions more arduous.
Senior counsel for the wife contended that s 91 of the Evidence Act does not prohibit admissibility of the Sentence Remarks. She contended that the Full Court’s decision in Cirillo & Cirillo [2021] FedCFamC1A 45 (“Cirillo”) is authority for the proposition that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts (Cirillo at [36]).
The victim of the husband’s offending, Ms C, was not called to give evidence in the present case. The wife could not give evidence about the details of the husband’s sexual assaults on Ms C as her only knowledge was derived from what she saw, heard, and learned during the husband’s criminal trial and sentencing. Whilst the fact of the convictions is unarguable, the only record of the details of the facts of perpetration are contained in the Sentence Remarks.
The Court observes the artificiality and incongruity of having before it clear evidence about the husband’s convictions and sentencing, but not the details of the conduct that resulted in those convictions and sentencing. There is a sense in which the Court could almost be misled by the incomplete evidence of merely the convictions and sentencing.
Senior counsel for the wife contends, in substance, that the purpose of the tender is not to prove the existence of the facts recited in the Sentence Remarks. Rather, the tender is to provide context to the impact on the wife’s contribution of the husband’s conduct towards Ms C.
Moreover, the tender would enable the Court to draw inferences about the impact on the wife of the husband’s conduct during the trial of pleading, and maintaining a plea of, not guilty. The Court notes, however, that if an inference is available in this regard, it can be drawn from the conceded, and self-evident, fact of the not guilty plea.
Senior counsel also contended that the purpose of the tender was to establish that the husband had been diagnosed with paedophilia, a diagnosis made by a psychologist, Dr E, and referred to in the Sentence Remarks. The husband conceded in cross-examination before this Court that a report was prepared by Dr E for the purposes of sentencing, but the Court notes he was not asked about the diagnosis of paedophilia in cross-examination in the present proceedings. In his written submissions, the husband asserted that the diagnosis of paedophilia is an “alleged fact” which is the sort of matter that s 91 is directed to. The Court agrees. The husband’s diagnosis of paedophilia as referred to in the Sentence Remarks is a finding of fact which was a fact in issue in the criminal proceedings. It is not admissible to prove the existence of that fact in this Court.
Finally, senior counsel submits that the Sentence Remarks are relevant to rebut any adverse inference, as indeed sought to be drawn in the husband’s case, about the wife’s failure to call Ms C to give evidence in the present proceedings. This will be dealt with as a separate objection below, but the Court’s view is that the Sentence Remarks are unnecessary for the Court to adjudicate what is, in effect, a Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) issue.
Unless stated otherwise above, the Court accepts the submissions made in the wife’s case about the Sentence Remarks. Consistent with the Full Court’s decision in Cirillo, the document is not being tendered for the purpose of proving the facts referred to and will not be used as such by the Court.
Counsel for the husband also objected to the tender of the Sentence Remarks on the basis of s 135(a) of the Evidence Act in that it would be unfairly prejudicial to the husband. Section 135 states:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Regrettably, little was said on the husband’s behalf to explain how, precisely, the admission of the document would be unfairly prejudicial to him. At paragraph 70 of the husband’s written submissions there is the assertion that the husband continues to maintain his innocence, does not accept the basis upon which he has been sentenced, and has taken steps to appeal his conviction. The Court infers that this is the basis of the claim of unfair prejudice.
The Court does not accept that s 135 is a basis to exclude the Sentence Remarks and does not accept that the husband is in any way unfairly prejudiced by the admission of the same. Senior counsel for the wife cited the decision in Damiani & Damiani [2010] FamCA 217, where Watts J at [35] stated:
‘Unfairly prejudicial’ holds a particular meaning in law, defined by the ALRC (ALRC 26, vol 1, para 644) as “the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case”. The findings in relation to violence are logically connected to the case presented by the wife. Their probative value is not outweighed by any unfair prejudice.
The Court agrees. No submission was made about the danger that an experienced professional fact finder might use this evidence inappropriately. The evidence has probative value as to the wife’s claim that her contributions were rendered more arduous by the husband’s conduct. The inability of the husband to test the evidence of Ms C about the facts found by the jury to be true in convicting him beyond a reasonable doubt does not, in the circumstances of this case, amount to unfair prejudice or disadvantage to the husband. The fact is that the husband’s counsel in the criminal trial had already cross-examined Ms C. The purpose of the tender of the Sentence Remarks is not to re-establish the husband’s guilt, but merely to provide facts from which inferences may be drawn about how the wife’s contributions were rendered more arduous.
There is no prejudice or hardship to the husband arising from his (perhaps unsurprising) maintenance of his innocence. The Court notes with interest the very careful manner in which his counsel described the husband’s criminal appeal in written submissions: “has taken steps to appeal the conviction” (paragraph 70). Perhaps the clearest insight into this issue of an appeal is derived from the husband’s evidence in cross-examination where he said: “[i]n my world, I still have to do the appeal, and I’m sure I’m getting acquitted” (Transcript 24 April 2024, p.123 lines 33–34). The fact is, the Court finds, that whatever may be occurring for the husband in his “world”, there is no evidence before the Court to reasonably satisfy it that the husband has lodged an appeal from either his conviction or sentencing. Rule 3.1 of the Supreme Court (Criminal Appeal) Rules 2021 refers to the filing of a Notice of Intention to Appeal which has effect for a period of 12 months after the day it is filed. The evidence before the Court indicates that such a Notice was filed on 28 November 2022. According to r 3.1, therefore, the Notice is no longer effective. Indeed, this has been the case since 28 November 2023. The onus of proof was on the husband to reasonably satisfy the Court that he had in fact lodged an appeal. Alternatively, he might have provided evidence of some application to extend the time for filing an appeal, but no such evidence was led. In his evidence the husband refers to his criminal law advisors but leads no evidence from them. No issues of privilege are likely to arise on the mere factual issue of the lodgement of an appeal, or extension to file an appeal.
Having regard to all the evidence before it, therefore, the Court finds that any Notice of Intention to Appeal is ineffective as more than 12 months has elapsed since the time of filing. There is no evidence before the Court about any appeal that the husband has filed against his conviction and/or sentencing. The Court rejects any contention, express or implied, that the admission of the Sentence Remarks is prejudicial, or causes hardship, to the husband because of his maintenance of innocence, and any intention he may have to appeal.
Exhibit A32 is admitted unconditionally.
Does a Jones v Dunkel inference arise from the wife’s failure to call Ms C to give evidence in this case?
It is convenient to deal with this evidentiary issue at the outset. Much was made in the husband’s case about the failure of the wife to lead evidence from Ms C. At paragraph 90 of the husband’s written submissions he states:
The Wife’s PTSD diagnosis and indeed her Kennon case rests on the proposition that she suffered from vicarious trauma as a consequence of the trauma experienced by [Ms C], which was in turn communicated to or observed by the Wife. The problem is that the assumed trauma suffered by [Ms C] is not proved by any admissible evidence. The Jones v Dunkel inference properly applies to this complete lacuna in the evidence. There is simply no explanation for the failure to adduce evidence from [Ms C]. The Court could have been closed or leave sought for her to give her evidence remotely. It is a substantial gap in the Wife’s case.
The failure to lead evidence from Ms C was also raised as part of the objection to the admissibility of Exhibit A32. The Court has ruled that leading evidence from Ms C was irrelevant to the admissibility of the Sentence Remarks.
At paragraph 42 of the husband’s written submissions he contends that insofar as the wife claims that her contributions in the post-separation period were rendered more arduous by the husband’s conduct, the failure to lead evidence from Ms C, at that stage an adult, leads to an adverse inference.
In the matter of Lowe v Harrington (1997) FLC 92-747, the Full Court at [70] referred to Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 where it was explained at 343 that:
The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker: cf Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287; [1965] NSWR 1364 at 1370. The rule has no application if the failure to call the witness is satisfactorily explained or readily understood. The usual explanations are the absence of a witness from court and a reasonable explanation for not compelling the witness' attendance by subpoena…
(Emphasis in original)
The Court finds that the wife in her written submissions has satisfactorily explained why Ms C was not called as a witness, including that: the husband’s sexual offending against Ms C has been established by the Certificate of Conviction (Exhibit A31); calling Ms C to give evidence would expose her to a risk of harm; a litigant is not required to call every witness to a material event (citing ASIC v Hellicar (2012) 247 CLR 345 at [163]), and that she served an affidavit from another witness to the husband’s family violence, namely, Mr B.
The Court thus disagrees with the husband’s contention. At most, the inference is that the uncalled evidence would not have assisted the wife’s case. That is a very different proposition to, somehow, inferring that the uncalled evidence is damaging to her case. The wife’s evidence about the family violence perpetrated by the husband towards her, aspects of the husband’s anger and controlling behaviour, and some behaviour in the family household that could lead to an inference that the wife’s contributions were made more arduous, was corroborated in part by the evidence of Mr B. Moreover, the Court rejects any contention that, somehow, the evidence of Ms C would have been reasonably expected on the facts of this case. The husband’s own daughter was also his victim upon whom he perpetrated sexual abuse for which he was charged, convicted and sentenced. Giving evidence would have been potentially re‑traumatising, even if, as suggested by counsel for the husband, it had been given remotely. A Jones & Dunkel inference does not arise from the wife’s failure to call Ms C to give evidence in this case.
THE APPLICABLE LAW
This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage 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 marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, 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 marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s 75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; 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 marriage 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 (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, 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
(ha)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 marriage 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 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; 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
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”), the Full Court considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, which provided guidance on how s 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four‑step approach articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 79, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties;
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
(3)Identify and assess the other facts relevant under s 79(4)(d)–(g) including s 75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
Both parties raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 (“Kowaliw”) at 76, 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
As part of her case, the wife raises an argument based on the principle enunciated in Kennon v Kennon (1997) FLC 92-757 (“Kennon”). Fogarty and Lindenmayer JJ at 84,294 stated:
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…
In the above formulation, we have referred only to domestic violence…but its application is not limited to that…
…There have been marked changes in perceptions, both legal and social, about domestic violence in recent times and it appears to be appropriate to give effect to them: see Nguyen (1990) 169 CLR 245; Farnell and Farnell (1996) FLC 92-681, and lvanovic v Jvanovia (1996) FLC 92-689.
Later at 84,294–84,295 their Honours went on to make this comment:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…
At the time Kennon was delivered, family violence was defined under s 60D of the Act to be “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety”. The Court infers the Full Court’s reference to “violent conduct” to fall under this definition.
Recently, Aldridge J in Martell & Martell (2023) 66 Fam LR 650 (“Martell”) stated at [20] that:
Although widely quoted and followed, the principle stated in Kennon cannot be treated as if they were those of a statute – immutable and unvarying. At the least, those words must be read in the light of the Act as it speaks now.
The Court agrees with Aldridge J and reiterates that the parameters of the principles in Kennon must expand as the definition of family violence expands. The “Act as it speaks now” defines family violence in s 4AB as:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In Martell at [22], Aldridge J expanded the test in Kennon and made clear that given the prevalence of family violence in society today, the relevant conduct is not limited to “exceptional” cases:
It has to be said, that their Honours (sic) terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle…the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.
His Honour went on to say:
[25]The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
[26]That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
The Full Court in Britt & Britt (2017) FLC 93-764 (“Britt & Britt”) established that even where a party does not call specific evidence that suggests their contributions were made more onerous, the Court can infer that there is a nexus between one party’s conduct on the other party’s contributions:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
75.The real question is whether the evidence, taken as a whole, is capable of leading to such an inference…
Similarly, the Full Court in S & S [2003] FamCA 905 (“S & S”) at [45] approved the following summary of the law regarding Kennon by the trial judge, in circumstances where difficulty arose from the wife’s material, because although she gave evidence about specific acts of violence, she did not expressly refer to the impact of the violence on her contributions:
It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions. The question in the present case is whether the material on behalf of the wife can be said to fall within that category.
The Full Court in Benson & Drury (2020) FLC 93-998 (“Benson & Drury”) made clear the required nexus between the family violence and its impact by stating that:
49.…it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties.
50.…An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of human deduction and reason in the light of human experience, unaffected by any rule of law. Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice.
(References omitted)
In Baranski & Baranski [2012] FamCAFC 18 the Full Court found at [257] that the Kennon principle could be applied to post-separation contributions:
…we find nothing in the provisions of s 79 or in logic which suggest that post separation contributions of any kind are not relevant to determining a just and equitable apportionment of the property of parties to marriage. Indeed, as was suggested during the course of the hearing of this appeal, it would be surprising if, as is undoubtedly the case, post-separation contributions of the various kinds falling within s 79(4) were relevant to determining the property entitlements of parties, except those involving or impacted by domestic violence. Excluding such contributions may well be conducive to an outcome which is not “just and equitable” as required by s 79(2) and was likely to have been in this case.
Their Honours went on at [259] to state that:
In reality, the obiter dicta of the majority in Kennon (supra) did no more than confirm that, where the contributions of a party are rendered more arduous by the violent conduct of that party’s spouse…that is a matter which is relevant to determining the nature and quality of the parties’ contributions. Quite apart from the absence of any statutory prohibition upon so doing, it would be illogical and unjust, to find a party’s contributions to have been rendered more arduous by virtue of the violent conduct of the other party to a marriage to the time of separation, but not thereafter, in circumstances where making those contributions continued to be arduous notwithstanding that the violent conduct may have ceased. In this case, the husband committed a serious assault upon the wife almost a year after separation.
In Keating & Keating (2019) FLC 93-894 at [33] the Full Court further explained that the Kennon principle is relevant to post-separation contributions:
The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship. Nor should Kennon be interpreted…as laying down a hard and fast rule that post separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant. As Kennon at 84,295 makes clear, the question of relevance of post separation violence is that it would not usually be of a sufficient duration for its impact to be relevant to the victim spouse’s contributions.
When taking into account the contributions of one party found to have been made significantly more arduous by the other, the Full Court in Benson & Drury outlined the appropriate approach:
35.…the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.
36.That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act. Any adjustment to the parties’ contributions-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
37.…the issue is not a stand-alone claim, but is rather integral to the entire process.
(References omitted)
There are two other factors arising in this case that need to be considered. Firstly, the wife argues that her contributions were rendered more arduous as a result of the family violence (the sexual abuse) that was perpetrated by the husband against Ms C, as well as against herself. Secondly, there was a temporal delay between the contributions having been rendered more arduous, and the realisation that the reason for this was the family violence perpetrated by the husband against Ms C. This will be discussed further below where relevant.
OBSERVATIONS ABOUT THE WITNESSES
The wife was visibly emotional when giving evidence and her answers were sometimes unresponsive. She admitted that she had a poor memory. The Court nevertheless accepts her evidence, especially in relation to family violence, unless stated otherwise below. A hypothesis of trauma cannot be ruled out given the facts and medical evidence in this case, and thus forms a prism through which the wife’s evidence can be viewed. The husband was also unresponsive at times and refused to make appropriate concessions. While the husband admitted that he often asked the wife to confirm the date of when particular events occurred (in the context of senior counsel for the wife attempting to establish a timeline of events), the Court found him to be a more reliable historian in relation to financial matters, which is understandable given he was primarily responsible for the parties’ finances during the relationship. His evidence in this regard will be preferred over that of the wife.
Mr B’s cross-examination lasted only five minutes. His responses were clear and direct, and he made appropriate concessions. Much of his evidence went unchallenged.
THE WIFE’S MEDICAL AND PSYCHOLOGICAL EVIDENCE
It is necessary to preface the discussion about the medical evidence by foreshadowing that the Court will accept the wife’s evidence about both the family violence she experienced during the marriage, and that experienced by Ms C, as well as the impact on her contributions of this family violence. Thus, substantial weight will be given to the medical evidence of the wife even though her treating professionals relied on her statements only in formulating certain conclusions.
The wife led evidence from her rheumatologist Ms L (affidavit filed 2 April 2024, Exhibit A40), her GP Dr M (affidavit filed 2 April 2024), and her psychologist Ms N (affidavit filed 2 April 2024, Exhibit C3), all of whom were cross-examined. She also tendered the progress notes of her current psychologist, Ms P (Exhibit A36). All of these were treating medical professionals.
Ms L has treated the wife since March 2015 and the wife has had regular appointments with her approximately every four months, which are ongoing to this day. She outlined that the wife suffers from a number of medical conditions including chronic conditions, which require medication and ongoing management. She drew a causal link between the stress and trauma suffered by the wife (which arose from the husband’s sexual abuse of Ms C and the husband’s control and abuse of the wife, as relayed to Ms L by the wife) and the present chronic pain arising from her medical conditions Ms L’s affidavit filed 2 April 2024, paragraph 18). She explained that “a lot of her symptoms” since the husband’s arrest have been driven by pain “in the context of stress” (Ms L’s affidavit filed 2 April 2024, paragraph 18). She also commented on the husband’s “strange” behaviour in speaking on the wife’s behalf during appointments and observed that he was “controlling” and “dominated” her (Ms L’s affidavit filed 2 April 2024, paragraph 6).
The husband submitted that Dr Q, the husband’s medical specialist, is in a far better position than Ms L to comment on his character having known him for a long period of time, and that Dr Q described the husband as a “pleasant gentleman” (Exhibit R60). He further submitted that Ms L’s report lacks detail, falls short of the evidence required for a Kennon adjustment, and should be treated as irrelevant.
The Court agrees with the husband that Ms L’s limited interaction with the husband does not justify any adverse findings being made about his behaviour at appointments with her, especially in circumstances where she later asked the husband to call her to report on the wife’s progress (Exhibit A40). Dr Q’s opinion that the husband is pleasant is unspecific, unhelpful and irrelevant. Pleasant men can commit family violence.
The Court otherwise accepts Ms L’s evidence about the conditions suffered by the wife and the link between the wife’s stress, trauma and chronic pain. She was qualified to make the observation and draw the conclusion that she did.
Ms N, the wife’s psychologist, saw the wife on a fortnightly basis for six sessions in mid-2023. She diagnosed the wife with complex post-traumatic stress disorder (“complex PTSD”), in the context of the prolonged coercive control she experienced. This included verbal abuse, disinhibited behaviour, and social and financial control by the husband, commencing shortly after they were married and escalating after they moved to New Zealand in the late 1990s (Transcript 26 April 2024, p.205 lines 1–23). She opined that the wife suffers from symptoms including hyperarousal, intrusive thoughts, dysphoria, a sense of shame, guilt and self-blame, a lack of confidence, and feelings of helplessness and isolation (Exhibit C3). The ongoing court proceedings and continued joint ownership of the Suburb C property are stressors for the wife (Exhibit C3). She requires ongoing psychotherapy and medications, as well as lifestyle changes such as yoga and survivor support groups. Ms N is cautiously optimistic about the wife’s prognosis but suggests that it will take some years for her to recover (Transcript 26 April 2024, p.210 lines 1–11).
The husband submitted that there is doubt surrounding the wife’s complex PTSD diagnosis because she stated in cross-examination that she did not experience the symptom of “dysphoria” (Transcript 23 April 2024, p.70 lines 33–43). Thus, this evidence cannot support the wife’s Kennon claim. This submission lacks any merit, as Ms N explicitly explained during cross-examination that a diagnosis of complex PTSD is still valid if the patient does not experience every symptom, including dysphoria (Transcript 26 April 2024, p.207 lines 10–22). He also submitted that the wife’s complex PTSD diagnosis and its precipitants rest on the wife’s unreliable, overblown, and exaggerated evidence of family violence, which is readily apparent from Mr B’s evidence, the great gaps in the wife’s chronology of events and the lack of specificity in her claims. As foreshadowed above, unless otherwise stated in these reasons, the Court accepts the wife’s evidence about family violence. Moreover, the husband overreached in his criticism of Mr B’s evidence, who he (the husband) caused to be cross‑examined for only five minutes. The Court is satisfied that Mr B gave truthful evidence about his experience of his parents’ relationship from his perspective as a child.
Dr M has been the wife’s GP since August 2022. She has consulted with the wife about several medical conditions. The wife also discussed with her the husband’s criminal court proceedings, family violence perpetrated by the husband, and the current property proceedings. The wife reported disturbed sleep and recurring nightmares. Dr M suggested that the resolution of Court proceedings would assist the wife in managing her mental and physical health. She estimated it would take one to two years, or even longer, for the wife’s mental health to recover after the conclusion of these proceedings (Transcript 24 April 2024, p.99 lines 32–35). The Court accepts that limited weight may be placed on the evidence of Dr M. The evidence suggests that the wife gave very little specific detail to her about the family violence she experienced.
Moreover, the Court accepts the criticism in the husband’s case of the wife’s failure to call her prior GP, Dr S. Dr S was treating the wife in the period before, and at the time of the husband’s arrest. In particular, he could have assisted the Court in relation to the wife’s experience of complex PTSD prior to the date of the arrest in 2019.
This does not, however, negate the evidence of the wife’s experience of family violence during the marriage (reported to numerous medical practitioners), her current complex PTSD diagnosis or the range of physical conditions she suffers from, which are also impacted by her mental health.
The husband submitted that this evidence as a whole should be treated with caution, as the witnesses are not single experts and they have given partisan evidence on behalf of the wife without taking any history from the husband. He suggested that they have all proceeded on the basis that the wife’s mental health problems stem from her experience of family violence, rather than considering other factors such as her previous medical condition diagnosis or hospitalisation in the Country J in the late 1980s. The Court notes that the husband was put on notice that the wife was intending to lead such evidence, with a notation on 30 November 2023 indicating that the wife intended to lead evidence from her treating practitioners and a notation on 3 November 2021 indicating that the wife intended to make a Kennon argument. No matters were put to the witnesses that would permit the conclusion that their records, diagnoses or opinions represented anything other than the discharge of their professional obligations as the wife’s treating professionals. At no stage did the husband indicate that he wished to seek the appointment of a single joint expert in relation to the mother’s physical and/or mental health. He had the opportunity to explore these issues and failed to avail himself of the same.
Unless otherwise stated above, the Court accepts the evidence of the wife’s treaters as evidence of the medical, conditions suffered by her and the causation of those conditions. Their evidence, where relevant, is outlined in more detail later in these reasons for judgment.
THE BALANCE SHEET
A joint balance sheet was handed up on the afternoon of the final day of the hearing (Exhibit C1), which is reproduced as follows (not including the wife and the husband’s annotations or comments):
Ownership Description Husband’s Value Wife’s Value ASSETS 1 Joint C Street, Suburb D NSW, valuation 22.03.2024 $4,000,000 $4,000,000 2 Joint Dajani Family Trust - Super Fund 2 #45 at 20.02.2024 $173,369 $173,369 3 Wife Savings Account# …89 at 7.04.2024 $42,691 $42,691 4 Wife Savings Account# …70 at 7.04.2024 $30,991 $30,991 5 Wife Motor Vehice 1 $20,100 $20,100 6 Wife Wife's jewellery $5,000 $5,000 7 Husband Plant and equipment including machinery $163,260 $163,260 8 Husband F Bank Controlled Monies Account #…06 at 28.03.2024 $1,261 $1,261 9 Husband R Correctional Centre Account as at 26.03.2024 $4,530 $4,530 10 Husband Motor Vehicle 2 $30,000 $30,000 11 Husband Crystal collection $50,000 $50,000 Husband Money held on trust by T Lawyers $3,300 $3,300 Total $4,524,502 $4,524,502 ADDBACKS 12 Husband Husband's Partial Property Settlements $220,000 $220,000 13 Wife Wife's Partial Property Settlements $220,000 $0 14 Husband Wastage - Rent paid by wife NIL $200,740 15 Husband Husband's Criminal Law fees U Lawyers $86,470 $86,470 16 Husband Cost Assessment fees re U Lawyers fees $12,502 $12,502 17 Husband U Criminal sentencing and advice on appeal $58,850 $58,850 18 Husband V Lawyers Power of Attorney fees arising from incarceration NIL $4,205 19 Husband Family Law Fees paid by husband $202,415 $202,415 20 Wife Family Law Fees paid to Santone Lawyers $25,825 $25,825 Wife Super Fund 2 #39 funds expended $194,696 21 Wife Family Law fees paid to Mr W $187,099 $187,099 Total $1,207,857 $998,106 LIABILITIES 22 Joint Debt to Ms C $50,000 $60,000 23 Joint Debt to Mr B $50,000 $60,000 24 Husband CBA Credit Card #91 at 2024.01 .13 $862 $862 25 Joint Associated sale costs, 2% commission, conveyancing NIL $100,000 Total $100,862 $220,862 SUPERANNUATION Member Name of Fund Husband’s Value Wife’s Value 26 Wife Wife Super Fund 1 #13 as at 8.04.2024 $1,184,747 $1,184,747 27 Wife Super Fund 1 #82 as at 8.04.2024 $341,261 $341,261 28 Joint Super Fund 1 Investment Account as at 9.11 .2023 $2,560 $2,560 29 Husband Super Fund 1 #81 20.2.24 $357,297 $357,297 30 Husband Super Fund 1 #83 20.2.24 $1,477,846 $1,477,846 Total $3,363,711 $3,363,711 FINANCIAL RESOURCES 31 Wife Motor Vehicle 3 (Mr B) $19,900 $19,900 32 Wife Motor Vehicle 4 (Ms C) $30,050 $30,050 Total $49,950 $49,950 SUMMARY Total property $4,524,502 $4,524,502 Total addbacks $1,207,857 $998,106 Total liabilities $100,862 $220,862 Total superannuation $3,363,711 $3,363,711 Total financial resources $49,950 $49,950 TOTAL PROPERTY AND SUPER MINUS LIABILITIES $7,787,351 $7,667,351
The Court observes that some items on the balance sheet are not numbered. Therefore “Money held on trust by [T Lawyers]” will become item 11A and “[Super Fund 2 #39] funds expended” will become item 20A.
The Court also notes that the value of the total net asset pool contended by the husband should equal $8,995,208, and the value of the total net asset pool contended by the wife should equal $8,665,457.
All of the assets on the balance sheet are agreed.
There is a dispute regarding the addback at item 13 on the balance sheet, being the wife’s partial property settlements amounting to $220,000 pursuant to orders made by consent on 17 September 2020 and 24 August 2021. In her written submissions the wife asserted that this amount should not be added back as it was spent on living expenses. In his written submissions, the husband countered that there is no evidence before the Court about how the wife expended the monies she received into her CBA #….89 account, and consequently, that the Court cannot have any confidence that the totality of the $220,000 was applied to her living expenses. In fact, there is evidence that the funds were partly applied in payment of legal fees (Exhibits A24 and A39) and that some of the funds were diverted by the wife to other accounts including her CBA #…70 account, CBA NetBank Allowance account and CBA Property Rent account, which has not been disclosed or explained (Exhibit A39). Further, additional funds were deposited into the wife’s CBA #…89 account from her Superannuation portfolio (Exhibit A39), creating confusion as to exactly which funds were applied to living expenses. The husband then submitted that the Court has three options to remedy this issue, including setting aside or not setting aside the partial property settlement orders, or removing item 12 (his partial property settlement) from the balance sheet and amending item 13 (the wife’s partial property settlement) to read as “$20,000”. The Court notes that the wife was not cross-examined on the above matters.
In her written submissions in reply, the wife opposed the latter proposition by reason of item 12 already being an agreed item on the balance sheet and it clearly being an addback. She further submitted that her legal fees have already been added back at item 21 on the balance sheet, she has spent amounts in excess of $220,000 on living expenses (a majority being spent on rent, Exhibits A8 and A9), and that while she did transfer money to other accounts, these statements are not in evidence because she was not on notice that there was any live issue in relation to them. These statements were disclosed to the husband, he had the opportunity to scrutinise them, and the wife was not cross-examined on this issue.
The wife recounted her experience of family violence to Ms N, who provided a report dated late 2023 (Exhibit C3) and gave the following evidence in cross-examination:
- - - something that Ms [Dajani] told you herself?---Yes. She – she said that the domestic violence started after she was married, which is, I guess, at least – at least from the 1980s, yes.
All right. Well, did she tell you what it was, what that domestic violence was that she was subjected to?---Well, her – the – she advised that the domestic violence escalated when they moved to New Zealand in 1997, but it was there prior to that.
Yes?---In terms of verbal abuse and some disinhibited behaviour by the husband, such as throwing [ornaments] and throwing plates.
Right. You mentioned on the same page severe coercive control?---Yes.
What did you mean by that?---Okay. So there was control of the finances by her husband. There was control of her – her – who she associated with, who – who – who she could make – make friends with and also control in terms of verbal abuse and threats. For instance, threatening to kill herself and the family by – by driving at a very high speed and crashing. So he threatened to drive into a tree at 200 kilometres an hour. Yes.
Okay?---So he also threatened to [commit suicide]. So there were these threats made to her. And she said he controlled everything. And that was how they lived their life.
(Transcript 26 April 2024, p.205 lines 1–23)
When she was questioned about a sentence in her report stating that the wife has developed complex PTSD “…in the context of severe coercive control over a prolonged period of about 17 years”, she clarified that this 17-year period “would be since they were in New Zealand, and then Australia” (Transcript 26 April 2024, p.206 lines 5–6).
Mr B gave similar evidence to the wife at paragraphs 22 to 33 of his affidavit filed 2 April 2024 about incidents of family violence after the family moved into the Suburb C property. These incidents include the husband losing his temper and bashing his fists on the table, throwing their family pet across the room on multiple occasions, punching a hole in the wall, regularly threatening to kill himself, throwing fruit at Ms C, and installing a security camera in the loungeroom making Mr B feel “watched”. Much of this went unchallenged in cross‑examination. He agreed that he did not describe any family violence occurring before 2013 (Transcript 23 April 2024, p.90 lines 14–15) and from what he “could tell as a child” his parents appeared to be happily married when they lived in New Zealand (Transcript 23 April 2024, p.90 lines 37–41). This does not dimmish the weight given to the wife’s evidence of the family violence she experienced prior to 2013. The Court accepts Mr B’s unchallenged evidence.
In her written submissions, the wife stated that early family violence appears to have been one of the precipitants for her hospitalisation for depression for five weeks in the Country J in the late 1980s. There is no evidence before the Court for this inference to be made. She did not tell her treating practitioners in Australia about her hospitalisation. In cross-examination, when asked what issue with her mental health caused her to be hospitalised, the wife responded, “[t]he issue was that his aunty […] kept on telling me how bad I was, and I – how bad I made him, for no reason” (Transcript 23 April 2024, p.53 lines 37–39). Thus, the Court cannot find that the family violence perpetrated by the husband was a precipitant to the wife’s hospitalisation in the 1980s.
The wife has provided ample evidence regarding the family violence she experienced during the marriage, and the Court accepts her evidence, unless otherwise stated. The Court acknowledges that she did not provide express evidence about the effect of that violence on her contributions. However, as stated above at [57], this failure is not necessarily fatal, as this is a case where the evidence falls into a category where it is a very likely inference from the facts that the family violence perpetrated by the husband must have adversely affected her contributions (S & S at [45]).
The husband’s sexual abuse of Ms C
Secondly, the wife submitted that the husband’s sexual abuse of Ms C had a direct impact on her during the marriage, making her contributions as a parent more arduous. She asserted that in the weeks leading up to the husband’s arrest Ms C exhibited disturbed behaviour, including screaming “I hate you!” and on one occasion taking a kitchen utensil outside, throwing it into the bushes and then diving into the pool with her clothes on at 11.30 pm at night (the wife’s affidavit, paragraphs 102–103). The wife stated that this made her sad and tense and that she could not sleep (the wife’s affidavit, paragraph 104). The husband agreed in cross-examination that Ms C and the wife began to argue more at the end of 2014 (Transcript 24 April 2024, p.163 lines 40–43), the relationship between Ms C and the wife was fractious (Transcript 24 April 2024, p.164 lines 35–37), Ms C was “abusing” the wife in her later teenage years (including telling her she hated her, storming around the house and screaming) (Transcript 26 April 2024, p.182 lines 16–34), and that she abused the family pet and occasionally fought with him (Transcript 26 April 2024, p.182 lines 36–39).
The evidence before the Court allows the inference to be drawn that the husband’s sexual offending against Ms C, proven by the Certificate of Conviction (Exhibit A31), caused or contributed to Ms C’s difficult behaviour, and that the wife’s contribution as a parent was rendered more arduous because of this. As above, the fact that she did not provide explicit evidence of how her contributions were made more arduous does not defeat her claim. It can be inferred from the facts that over a period of many years, at least being Ms C’s “last years” as a teenager (as conceded by the husband during cross-examination) until the husband’s arrest, the wife had to handle and cope with Ms C’s hostile behaviour as well as the unpleasant conflict-ridden environment it caused.
That the husband’s conduct in this regard was directed towards Ms C, and not the wife, is immaterial. As stated earlier in these reasons, the definition of family violence in s 4AB of the Act extends to “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful” (emphasis added). It follows that this encapsulates the family violence experienced by the wife.
Further, that the wife did not become aware of the cause of Ms C’s behaviour until after the husband’s arrest in 2019 is quite irrelevant in the circumstances. The reality of the wife’s contribution being rendered more arduous because of Ms C’s behaviour which, inferentially, was caused or contributed to by Ms C’s experience of abuse at the hands of the husband, is not diminished by the wife’s delayed awareness of the husband’s offending. Indeed, this delay is consistent with the secretive and covert nature of sexual abuse. This delay did not change the reality of the wife’s experience of Ms C’s behaviour, or the effect it has had on her contributions.
The husband’s post-separation conduct
Finally, the wife made three arguments relating to her post-separation contributions being rendered significantly more arduous as a result of the husband’s conduct.
The wife submitted that the completion of significant renovations to the Suburb C property, which commenced in 2015 and continued for approximately eight months after separation until 2020, were rendered more arduous as a result of the effects of the husband’s family violence upon her and her fragile mental state at the time, as well as the husband’s absence in prison. These renovations included replacing the deck, hot water system, curtains and roof; painting; and carpentry, gardening and electrical works (the wife’s affidavit, paragraph 58). She stated that the husband would call her from prison, sometimes multiple times per day, to ask about small details. This made it more difficult for her because she did not want to talk to him, and she found the conversations stressful as he would allegedly blame her for his imprisonment and ask her to withdraw her police statement and to get Ms C to withdraw her police statement (the wife’s affidavit, paragraph 59).
The Court accepts that the wife was solely responsible for organising and overseeing the completion of long-running renovations to the Suburb C property post-separation, and that her contribution in this regard was made more arduous by the husband’s absence, as well as the distress that communication with the husband caused her.
In addition, the wife submitted that the husband made here role in supporting herself, the children and their pets more arduous during the post-separation period by cutting off her access to funds from the Trust. in late 2020, the husband removed the original trustee of the Trust, H Trust (of which the husband and the wife were both directors and equal shareholders) and replaced it with K Holdings (of which the husband is the sole director and shareholder). The monthly payment of $15,000 from the Trust to the parties’ joint account ceased soon after (Exhibit A23) and the husband became the sole beneficiary of the Trust (Transcript 26 April 2024, p.229 lines 29–40). The reason for this given by the husband was that the wife’s conduct was diminishing the value of the Trust and he wanted to protect the assets of the Trust from further diminution (Exhibit R30). In cross-examination, he stated that he wanted the wife to remain as a trustee, but this is not what was recommended to him (Transcript 26 April 2024, p.230 lines 4–5). The wife stated that as a result of this, she was concerned that she would not have enough money to live on and support the children, who were still living with her and dependent on her, and that she felt like she had “no choice but to agree” to each party receiving a partial property settlement of $200,000 from the Trust (the wife’s affidavit, paragraph 138).
The Court observes that the wife had access to various other funds at this time, which would have been sufficient to cover her living expenses. For example, between mid-2019 and late 2019, she transferred $245,000 from the parties’ joint CBA #57 account to her own account (Exhibit R8). The Court does not find the husband’s conduct amounted to family violence. Even if the Court is wrong in this regard, the evidence does not lead to an inference that the family violence had an adverse effect on the wife’s contributions.
Lastly, the wife submitted her post-separation contribution of parenting the children was rendered more arduous in the context of the family violence perpetrated by the husband and consequently having to support the children through the period post-separation during the husband’s criminal trial and conviction. The revelation of the husband’s offending against Ms C had a deep impact on the wife which was described in detail at paragraphs 63–78 of her affidavit. She felt guilt, shame, betrayal, conflict, anger, disgust and disbelief. It was “the most awful time” for her. She attended the trial to give evidence and listen to the verdict and sentencing, while at the same time trying to support the children and maintain the home where the abuse occurred.
She attended the husband’s criminal trial to support Ms C, she cooked and cleaned for the children, drove them to counselling sessions, drove Mr B to visit the husband in prison, and supported both children financially. Both children were studying at university at the time, and Mr B failed a subject in 2019 (due to his distress) and Ms C deferred her studies in 2020.
The wife relies upon the evidence of Ms L, Ms N and Dr M in regard to her contributions being made more arduous. Ms L drew a causal link between the control and abuse suffered by the wife in the past and her present chronic pain based on her specialised knowledge of the link between stress and trauma and the chronic pain caused by medical conditions as well the symptoms of chronic disorder (affidavit of Ms L, paragraph 18). Ms N opined that the continual joint ownership of the Suburb C property and associated delay with these proceedings have led to “a continuation of the dynamic of coercive control and abuse” by the husband, which have had psychological impacts of the wife, as she receives “bills and correspondence about the property which are ongoing reminders of the trauma she has experienced, and which can trigger a strong emotional reaction” (Exhibit C3). In February 2023 Dr M prescribed the wife a low dose anti-depressant for anxiety and low mood. Dr M described the wife as appearing deeply distressed, anxious and tearful, and said she reported disturbed sleep and recurring nightmares. She was of the opinion that the delay in these proceedings was causing the wife significant distress and impacting both her physical and mental health (particularly her chronic disorder), as “any requirement to discuss, attend legal appointments and attend court only reminds her of the family violence towards herself and her daughter” (affidavit of Dr M, Annexure C). The Court accepts the evidence of these medical practitioners (while keeping in mind the limited weight that may be placed on the evidence of Dr M as stated at [74]) and finds that an inference can clearly be drawn that the significant impact the husband’s family violence and offending had on the wife made her post-separation contributions significantly more arduous.
In Cisek & Farrah(No 2) [2023] FedCFamC1F 804 (“Cisek & Farrah”) at [157], the judge took into account the following post-separation contribution of the wife as a factor when finding that there should be an adjustment in the wife’s favour:
Post separation the applicant had the responsibility of caring for the children during the first respondent’s period in jail. She received no financial assistance from the first respondent and quite clearly this was a difficult time for her and the children. The applicant was traumatised by her history with the first respondent.
On the evidence before the Court, the wife’s post-separation parenting contributions were made more arduous, and a nexus between the husband’s family violence and the significant adverse effect upon those contributions has been established.
The husband’s contentions regarding the wife’s Kennon argument
The husband submitted that the wife’s Kennon argument should be confined to the period of 19 August 2019 (the date of separation) to date, as the conduct complained of was towards Ms C and not the wife, and the wife was not aware of the husband’s sexual offending prior to separation.
The Court disagrees. Firstly, the wife complains of family violence towards herself and the family during the relationship; secondly, the fact that the wife became aware of the husband’s abuse against Ms C after separation does not detract from her submission that the impact of this conduct made her contributions more arduous before separation. The Court declines to confine the wife’s Kennon argument to a particular period of time. The husband noted that Ms C was an adult at the date of separation. This is irrelevant (see [127]).
The husband further submitted that the facts of this matter can be distinguished from Cisek & Farrah (e.g., the factors that the trial judge put weight on at [163]), in that his conduct falls short of establishing that he engaged in controlling behaviour towards the wife, including incidents of physical and sexual violence and financial control, that would necessitate a finding that the wife’s contributions were made significantly more arduous. He asserted that they had a long and happy marriage with periodic “ups and downs”, and that the co-ownership of property, delay in finalisation of proceedings and a “dysfunctional” relationship do not give rise to a Kennon-based adjustment.
This severely minimises the issues arising in this case. The Court accepts that the wife said the husband “was a nice person at the beginning of the marriage” (Transcript 23 April 2024, p.53 lines 38–39), that she shared a bed with the husband until separation (Transcript 23 April 2024, p.50 line 1), that Mr B recounted his parents as appearing to have a happy marriage while living in New Zealand (Transcript 23 April 2024, p.90 lines 37–41), and that the wife reported to Ms L that in 2017 she had an “excellent trip to Europe” with the family and at times reported that she was doing well or was described as being in “good spirits” (Exhibit A40). The Court notes that in cross-examination the wife agreed that she had been feeling well, but this was in the context of starting new therapies for her medical condition (Transcript 23 April 2024, p.61 lines 23–35).
However, this ignores the fact that the wife experienced family violence and had to manage Ms C’s difficult behaviour during the marriage, and post-separation had to deal with the aftermath of Ms C’s disclosure that she had been sexually abused by the husband, including supporting the children and dealing with her own physical and mental health issues which were caused and/or exacerbated by these events. The husband conceded to perpetrating family violence, including punching a hole in the wall (Transcript 24 April 2024, p.166 lines 31–40), losing his temper and hitting his fists on the table (Transcript 24 April 2024, p.165 lines 19–20) and threatening to commit suicide on multiple occasions (Transcript 24 April 2024, p.167 lines 11–20). He admitted that he placed a security camera in the loungeroom and that he had a light bulb in his shed activated by a sensor, although denied any sinister purpose that could be inferred from this (Transcript 24 April 2024, p.164 lines 1–26). The security camera made the wife feel “violated” (the wife’s affidavit, paragraph 99) and Mr B feel like he “was being watched” (Mr B’ affidavit, paragraph 23). The husband agreed that Ms C was “abusing” the wife (Transcript 26 April 2024, p.182 lines 16–34) in her later teenage years and also that he saw the wife’s expression of a view about what Ms C could do as “interfering” with him (Transcript 26 April 2024, p.184 lines 4–5). The Court does not accept the husband’s contentions.
The Court’s determination regarding the wife’s Kennon argument
There was ample evidence before the Court to establish that the husband perpetrated family violence and that this made the wife’s pre- and post-separation contributions significantly more arduous.
Justice Aldridge recently noted in Martell at [27] that:
More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine & Maine (2016) 56 Fam LR 500 at [47]–[52] (“Maine”); Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 (“Benson & Drury”) at [47]–[50]).
Further, the Full Court made clear in Maine & Maine (2016) 56 Fam LR 500 that direct evidence of the impact of violent conduct on the contributions of the other party is not necessary where there is an inescapable inference that the aggrieved parties’ contributions were made more onerous, particularly contributions falling under s 79(4)(c) of the Act:
48.…At [67] his Honour makes a specific finding that there was no “evidence that illustrates how such conduct has made the contributions by the wife more arduous”.
49.We consider that this finding by his Honour is erroneous. It ignores, with respect, direct evidence given by the wife in her affidavit not challenged substantively in cross-examination and not the subject of any adverse finding by his Honour. The wife gave direct evidence that family violence had made the household tasks and care of the children “more difficult”. In addition, given the wife’s detailed evidence of the history of the husband’s drunken violence and abuse over a period of about 20 years; the fact that no finding contrary to that evidence was made; and his Honour’s findings quoted at [66] above, we are, with all respect, unable to understand how it was not, in any event, an inescapable inference that the wife’s contributions – in particular her s 79(4)(c) contributions at the very least – were made “more onerous”.
(Emphasis added)
While the wife did not provide direct evidence in every respect regarding the impact of the husband’s family violence on her contributions, the Court nevertheless can draw this inference and accepts the wife’s evidence and finds that her contributions, particularly as homemaker and parent, were rendered more arduous both during the marriage and post-separation as a result of family violence and the sexual offending against Ms C perpetrated by the husband.
Even if the Court is incorrect in finding that numerous instances of the husband’s conduct cumulatively contributed to the wife’s contributions being made significantly more arduous, a course of conduct is not required to demonstrate this and a single incident may be sufficient (Scaletta & Scaletta [2024] FedCFamC1A 87 at [52]–[61]). Many of the single incidents described by the wife and accepted by the Court would be sufficient to come to the same conclusion.
The above will be taken into account when assessing the parties’ contributions having regard to the principles set out in Kennon and expanded in recent jurisprudence.
Overall contributions
The wife seeks an overall assessment of contributions as to 60:40 in her favour. The husband seeks an assessment of contributions as to 55:45 in his favour.
In Gadhavi & Gadhavi [2023] FedCFamC1A 117, the Full Court expressed at [41] that:
…it is to be appreciated that the exercise of the broad discretion bestowed upon the Court pursuant to s 79 of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”. It is often stated that there is an inevitable ‘leap’ from the evaluation of the parties’ contributions to declaring the “quantitative reflection of such an evaluation”.
In relation to Kennon claims, Aldridge J explained in Martell at [28] that:
In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour (2019) FLC 93-898).
The Court must assess the contributions of the parties, including the wife’s Kennon argument, holistically. Taking into account the matters discussed above, the Court assesses contribution, both direct and indirect, financial and non-financial as 60:40 in favour of the wife.
The Court recognises that at least at a conceptual level, no amount, whether expressed as a dollar amount or a percentage, could adequately recognise the wife’s contribution arising from her experiences on the facts of this case. I postulate, as I did 15 years ago, that “one cannot help but think that much greater thought needs to be given to the very rationale of a Kennon-type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts” (Kozovska & Kozovski [2009] FMCAfam 1014 at [77]). The practice of holistically assessing contributions in circumstances where contributions were made more arduous by family violence in effect hides, and thereby minimises, the impact of that family violence. This is, perhaps, a remnant of the “silence about violence” philosophy that once permeated family law and was purportedly justified on no fault grounds.[2] Whilst the benefits of holistic assessment are recognised, one nonetheless wonders whether it is an inadvertent example of what Graycar, in 1996 and in the context of violence against women, described as the “deeply gendered assumptions that persist across the whole legal system, assumptions that help to perpetuate the law’s indifference to, or indeed its tacit complicity in, violence against women”.[3] Nevertheless, this is the best that can be done within the current framework to acknowledge the impact that family violence can have on a party’s contributions in property proceedings.
[2] Juliet Behrens, ‘Ending the Silence, But…Family Violence under the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 35, 35.
[3] Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 7 Australian Feminist Law Journal 79, 80.
ASSESSMENT OF S 75(2) FACTORS
The wife seeks an adjustment of 10 per cent for future needs. The husband accepts that there should be an adjustment in favour of the wife (although does not specify what this adjustment should be) but also seeks an adjustment to himself of five per cent for future needs.
The wife submitted that her age, limited work experience, mental and physical conditions (including complex PTSD, medical condition and chronic disorder) support a finding that she has no meaningful capacity for future employment and work. The Court agrees. She claims that her weekly income of $2,308 does not cover her weekly expenditure of $3,055 and that she has had to draw down capital of at least $309,135 from her superannuation to cover living expenses since August 2019 (in addition to the partial property settlement of $220,000), thus necessitating a “top-up” of her superannuation to enable her to live at the standard she was accustomed to, without drawing down on her capital. She requires funds to purchase a property to live in, submitting that she will need “substantially more” than $1.8 million (the estimated cost of the property she currently lives in) to be able to afford a property of a similar standard she was accustomed to during the marriage. She also requires approximately $198,800 to cover the costs of travelling annually to the Country J in business class (because of the pain she suffers from her physical conditions), as well as $93,600 to cover the costs of ongoing weekly counselling for the next ten years to recover from her complex PTSD.
The husband submitted that the wife is attempting to use evidence from partisan treating practitioners to run a “back door Kennon claim”, presumably disguised as a s 75(2) claim. Ms N gave evidence in cross-examination that she is cautiously optimistic about the wife’s recovery from complex PTSD and that her personality lends itself to a good prognosis, but that even when these proceedings cease, she will probably require ongoing therapy for the next five to ten years (Transcript 26 April 2024, p.210 lines 1–11). She conceded that this timeline would need to be reassessed after these proceedings have ended (Transcript 26 April 2024, p.210 lines 10–11). The husband asserted that the assessment of an issue of this nature requires expert evidence through a single expert witness, rather than treaters who are aligned with the wife. The Court disagrees. Inferences can be drawn from the evidence provided (Britt & Britt at [55]).
The wife further submitted that any future needs adjustment she receives should re-establish the economic security and comfortable life that she enjoyed during the marriage, which the husband agreed was a high standard of living (Transcript 26 April 2024, p.174 lines 38–39). The Full Court in Patterson & Patterson (1979) FLC 90–705 stated at 78,759 that:
…The reasonable standard of living which the wife and her children should be able to demand is that which is as near as possible the one which they enjoyed while the parties cohabited.
The wife lastly submitted, as foreshadowed at [103], that the husband’s conduct, including failure to sell the machinery, failure to cancel direct debits from his credit card and joint accounts, refusing to sell the house and failing to pay bills in a timely manner, amounted to wastage of “at least $212,154”. The Court accepts the wife’s evidence in this regard. It was unreasonable for the husband to refuse to sell the machinery due to the possibility that he may file an appeal, be successful in that appeal and be permitted to remain in Australia (Transcript 24 April 2024, p.144 line 43 to p.145 line 4). There is no evidence to suggest this is even a remote possibility. It was similarly unreasonable for him to refuse to sell the Suburb C property for the reasons stated at [181] below. The Court also finds that the husband had the capacity to cancel direct debits from his credit card and joint accounts, and pay bills in a timely manner, given his capacity to instruct his power of attorney in relation to other financial issues. The Court finds that the husband’s conduct amounts to wastage and this will be taken into account under s 75(2)(o), although this will have little impact on any adjustment made.
The husband conceded that he will not need to support himself while he is incarcerated but submitted that upon release (which will be in 2031 at the earliest) he will be deported to New Zealand with no living arrangements, no employment and no prospects, and will also continue to suffer from a medical condition which requires regular medical management, which favours an adjustment in his favour.
The husband also submitted that if his criminal appeal succeeds, he may need funding for legal representation if the matter is re-tried. If the appeal succeeds, he will also need housing and seeks to retain the Suburb C property for that purpose. In cross-examination, the husband agreed that he would like to keep the Suburb C property, if possible, just in case he files an appeal and just in case that appeal succeeds. In cross-examination he said, “[i]n my world, I still have to do the appeal, and I’m sure I’m getting acquitted” (Transcript 24 April 2024, p.123 lines 33–34). However, as has already been stated the husband did not lead any evidence to support his contention that he has any intention or meaningful prospect of filing an appeal against his criminal conviction. The husband could have provided objective and non-privileged evidence about the status of his appeal, but he failed to do so. It is thus fanciful and unreasonable to suggest that he should be able to retain the Suburb C property.
The husband lastly submitted that if the wife’s expenditure on rental accommodation is not added back, this wastage should be taken into account under s 75(2)(o). The Court has determined that the wife’s expenditure on rental accommodation should not be included on the balance sheet. However, the Court also found that there is no warrant to treat this expenditure as wastage or a premature distribution of property. It will thus not be considered under s 75(2)(o) of the Act.
To determine whether any adjustment is warranted pursuant to s 75(2), the Court must first consider the effect of the findings as to contribution on the respective positions of the parties (Willis & Willis [2007] FamCA 819 at [50]). On the current balance sheet and the Court’s determination above that there be a 60:40 split of the net asset pool in the wife’s favour, the wife will receive $5,385,124.80 and the husband will receive $3,590,083.20. This is a differential of 20 per cent which equates to $1,795,041.60.
A further adjustment of 10 per cent under s 75(2) as proposed by the wife would produce a total differential of 40 per cent, or $3,590,083.20, with the wife receiving $6,282,645.60 and the husband receiving $2,692,562.40. The Court cannot justify making this adjustment on the facts of this case.
The Court recognises the wife’s substantial entitlement based on contribution, but also notes the circumstances where the wife is retired, has been out of the workforce for several decades and will need to meet future living and medical (both physical and psychological) expenses, travel costs, and the costs of purchasing a property, all of which will enable her to live comfortably and to a high standard. The Court finds that an adjustment of two and a half per cent (or $224,380.20) under s 75(2) is appropriate, with the wife receiving 62.5 per cent and the husband receiving 37.5 per cent. This produces a total differential of twenty-five per cent, quantified at $2,243,802 in terms of the net asset pool.
Having regard to the fact that the husband will remain in prison until 2031 (thus having limited future needs), where the Court has found that he has no meaningful prospect of filing an appeal against his criminal conviction, and where he will receive a relatively sizeable sum from the division of property based on his contribution, an adjustment will not be made in the husband’s favour under s 75(2).
A JUST AND EQUITABLE ORDER
Having regard to the Court’s findings above, the wife is entitled to an adjustment in her favour of 62.5 per cent, which results in her receiving $5,609,505 and the husband receiving $3,365,703.
The wife seeks to sell the Suburb C property and the husband seeks for the wife to transfer the Suburb C property to him, which will be sold if he is unable to pay the wife the sum which would implement the division of property. In circumstances where the Court has found that it is fanciful and unreasonable for the husband to suggest that he should be able to retain the Suburb C property, an order will be made for the Suburb C property to be sold. Due to previous difficulties in the parties dealing with this property arising from the husband’s imprisonment and non-cooperation, an order will be made for the wife to be appointed as trustee for herself and the husband for the sale of the Suburb C property. The Court notes the husband’s opposition to this order but has no doubt that the wife will adhere to her duties as trustee. She is not motivated to sell the Suburb C property for anything other than the highest price possible in the circumstances. An order will be made for the husband to arrange for a third party to collect any of his personal property from the Suburb C property prior to the settlement of the sale of that property. The balance of the proceeds of sale will be divided between the parties to implement the overall division of the net asset pool as to 62.5 per cent to the wife and 37.5 per cent to the husband.
Orders will otherwise be made largely in terms of the orders sought by the wife, including that the parties otherwise retain any property in their own name, that the wife relinquish any position or entitlement in the Trust, and that Ms C and Mr B each receive $60,000. The Court declines to make orders proposed by the husband that relate to bank accounts that do not appear on the balance sheet. The Court will instead order that the parties do all acts necessary to close and distribute the parties’ joint accounts, including the Super Fund 7, as to 62.5 per cent in favour of the wife and 37.5 per in favour of the husband. The Court acknowledges that the wife proposed that the Super Fund 7 be distributed equally between the parties, but the Court maintains that this account should be treated in the same way as the parties’ other joint accounts not otherwise on the balance sheet.
The Court also declines to make an order pursuant to s 114(1)(a) of the Act restraining the husband from coming within 50 metres of the wife, given he is currently incarcerated, has no meaningful prospect of appealing his criminal conviction and will, on the evidence, be deported to New Zealand upon his release. The Court believes it proper to make an order that restrains the husband from communicating with the wife directly or indirectly other than through legal representatives, given the Court’s findings about family violence in this matter, and the detrimental impact that such communication has had on the wife.
The orders outlined above would result in the following division of property between the parties:
Wife Husband Description Value Description Value ASSETS 1 C Street, Suburb D NSW, valuation 22.03.2024 $2,500,000 C Street, Suburb D NSW, valuation 22.03.2024 $1,500,000 2 Dajani Family Trust - Super Fund 2 #45 at 20.02.2024 $173,369 3 Savings Account# 89 at 7.04.2024 $42,691 4 Savings Account# 70 at 7.04.2024 $30,991 5 Motor Vehicle 1 $20,100 6 Wife's jewellery $5,000 7 Plant and equipment including Machinery $163,260 8 F Bank Controlled Monies Account #06 at 28.03.2024 $1,261 9 R Correctional Account as at 26.03.2024 $4,530 10 Motor Vehicle 2 $30,000 11 Crystal collection $50,000 11A Money held on trust by T Lawyers $3,300 Total $2,598,782 Total $1,925,720 ADDBACKS 12 Husband's Partial Property Settlements $220,000 13 Wife's Partial Property Settlements $220,000 14 Wastage - Rent paid by wife $0 15 Husband's Criminal Law fees T's Lawyers $86,470 16 Cost Assessment fees re T's fees $12,502 17 U Lawyers Criminal sentencing and advice on appeal $58,850 18 V Lawyers Power of Attorney fees arising from incarceration $0 19 Family Law Fees paid by husband $202,415 20 Family Law Fees paid to Santone Lawyers $25,825 20A Super Fund 2 #39 funds expended $194,696 21 Family Law fees paid to Mr W $187,099 Total $627,620 Total $580,237 LIABILITIES 22 Debt to Ms C $30,000 Debt to Ms C $30,000 23 Debt to Mr B $30,000 Debt to Mr B $30,000 24 CBA Credit Card #91 at 2024.01 .13 $862 25 Associated sale costs, 2% commission, conveyancing $0 Associated sale costs, 2% commission, conveyancing $0 Total $60,000 Total $60,862 SUPERANNUATION 26 Super Fund 1 #13 as at 8.04.2024 $1,184,747 27 Super Fund 1 #82 as at 8.04.2024 $341,261 28 Super Fund 1 Investment Account as at 9.11 .2023 $1,600 Super Fund 1 Investment Account as at 9.11 .2023 $960 29 Super Fund 1 #81 20.2.24 $357,297 30 Super Fund 1 #83 20.2.24 $1,477,846 Total $1,527,608 Total $1,836,103 FINANCIAL RESOURCES 31 Motor Vehicle 3 (Mr B) $19,900 32 Motor Vehicle 4 (Ms C) $30,050 Total $49,950 Total $0 Total (excluding financial resources) $4,694,010 Total (excluding financial resources) $4,281,198
If the Suburb C property is taken to be valued at $4 million, this creates a shortfall of $915,495 to the wife. At the settlement of the sale of the Suburb C property, the husband will need to pay the wife such a sum that achieves the 62.5:37.5 split of the net asset pool.
The Court is satisfied that to the extent the evidence permits, the orders proposed are just and equitable to both parties. There is enough for both of them to reaccommodate and re-establish their separate lives in a comfortable fashion.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 12 September 2024
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