Delmont & Simms
[2024] FedCFamC2F 113
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Delmont & Simms [2024] FedCFamC2F 113
File number(s): NCC 3440 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – de facto property – decades-long relationship – modest property pool – finding that the perpetration of family violence had a significant adverse effect on contributions – where neither party has meaningful prospect of returning to paid employment – legal aid caveat to consider - overall adjustment of property 60:40 in favour of de facto wife – timely severance of the parties’ financial relationship - just and equitable Legislation: Family Law Act 1975 (Cth) Part VIIIAB Cases cited: Benson & Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1
Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387
Blandford & Esmore [2022] FedCFamC1A 67
Blass & Blass [2022] FedCFamC1A 63
C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 24
Fields & Smith [2015] FamCAFC 57; (2015) 53 Fam LR 1
Jonah v White [2012] FamCAFC 200; 48 Fam LR 562
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158
Kennon & Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1; (1997) 139 FLR 118
Koch & Kest [2021] FamCA 408
Lenehan & Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615; (1987) FLC 91-814
Lotta & Lotta [2017] FamCA 50
Lovine & Connor [2012] FamCAFC 168
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819
Petrellis & Petrellis [2023] FedCFamC1A 104
Petruski & Balewa [2013] FamCAFC 15; (2013) 49 Fam LR 116
Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108; (2012) 47 Fam LR 481
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 7-8 December 2023 Place: Newcastle Counsel for the Applicant: Mr Alexander Gallimore Solicitor for the Applicant: The Family Law Co Counsel for the Respondent: Mr Michael Graham Solicitor for the Respondent: Grace Family Law Solicitors ORDERS
NCC 3440 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DELMONT (BY HIS LITIGATION GUARDIAN – MS DELMONT)
Applicant
AND: MS SIMMS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT DECLARES THAT:
1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)the applicant, MR DELMONT (‘the de facto husband’) and the respondent, MS SIMMS (‘the de facto husband’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a);
(b)the de facto relationship ended in August 2020;
(c)the parties made substantial contributions to their property; and
(d)a failure to make an Order pursuant to s 90SM and/or a declaration pursuant to s 90SL would result in serious injustice to the parties.
2.Pursuant to s 90RD(1) of the Act and for the purposes of s 90SK:
(a)The de facto husband was ordinarily resident in a participating jurisdiction (namely the State of New South Wales) at the time when the application for orders under s 90SM was made; and
(b)Both parties were ordinarily residents of the State of New South Wales during at least one-third of the de facto relationship.
3.Except as otherwise provided for in these Orders:
(a)Each party shall retain, to the exclusion of the other, all assets and property presently in their name or ownership; and
(b)Each party shall be solely liable for, all liabilities and debts presently in their name, and will indemnify the other with respect to these, and will keep them indemnified.
4.The husband shall be declared to have the sole right, title and interest in any and all superannuation interests which are held by the trustee of any superannuation fund in the husband’s name.
THE COURT ORDERS THAT:
Cash payment
5.By 1 March 2024, the de facto wife is to pay the de facto husband the sum of $125,058 (‘the payment’) in accordance with his written direction PROVIDED THAT upon receipt of the payment, the de facto husband is to pay to Legal Aid NSW the amount owing to Legal Aid NSW for the husband’s legal costs of these proceedings.
6.Contemporaneous with the payment being made, the parties shall do all acts and things necessary and sign all documents required to transfer from the de facto husband to the de facto wife all of the de facto husband’s right, title and interest in the property situate and known as B Street, Town C, in the State of New South Wales (‘the Town C property’) being more properly described as Lot … on Deposited Plan … being held in Folio Identifier ….
7.Contemporaneous with the payment being made, the parties shall do all acts and things necessary and sign all documents required to discharge the existing Commonwealth Bank of Australia mortgage (identifier number …) secured over the Town C property.
8.Contemporaneous with the payment being made, the de facto husband shall do all acts and things necessary to have Legal Aid NSW withdraw any existing caveat secured over the Town C property.
Sale of the Town C property
9.Should the de facto wife default on Order 5, then by 15 March 2024, the parties shall do all things necessary and sign all documents required to cause the Town C property to be listed for sale.
10.To facilitate the sale of the Town C property:
(a)By 22 March 2024, the de facto husband (or his solicitor as the case may be) shall provide to the de facto wife (or her solicitor as the case may be) a list of three real estate agents and three conveyancers to act in the sale;
(b)By 28 March 2024, the de facto wife (or her solicitor as the case may be) shall nominate one real estate agent and one conveyancer from the list to act in the sale, FAILING WHICH the de facto husband can make that decision unilaterally;
(c)By 5 April 2024, the parties shall agree on a list price for the property and a sales strategy (private treaty or auction or something else) failing which the list price and the sales strategy shall be in accordance with the recommendation of the appointed real estate agent;
(d)The parties shall do things necessary and sign all documents required by the appointed real estate agent and conveyancer to execute a contract of sale and subsequently settle the transaction.
11.Upon settlement of the sale of the Town C property, the sale proceeds shall be disbursed as follows:
(a)Payment of the selling agent’s fees and the legal fees of the sale;
(b)Payment of outstanding council and water rates;
(c)To discharge any mortgage secured against the Town C property;
(d)To discharge any Legal Aid caveat secured against the Town C property;
(e)Subject to Order 13, the remaining proceeds shall be divided between the parties to achieve a property adjustment of the parties’ property interests of 60:40 in favour of the de facto wife as follows:
A.Payment to the de facto husband in accordance with his written direction and calculated by reference to the following formula:
(SP + WA + HA) x 40% - HALC = the de facto husband’s share
Where
SP = the remaining proceeds of sale of the Town C property PLUS the amounts paid to Legal Aid NSW on account of any caveats withdrawn at settlement;
WA = the wife’s assets totalling $NIL;
HA = the husband’s assets totalling $32,000;
HALC = $32,000 PLUS the total sum paid out to have the Legal Aid caveat (if any) withdrawn.
B.Payment of the balance (‘the de facto wife’s share’) as follows:
(i)payment to the de facto husband of any amounts accrued because of the de facto wife’s failure to comply with Order 13 which were either paid out at settlement of the sale or which the de facto husband otherwise paid;
(ii)payment of the balance to the de facto wife in accordance with her written direction.
The Town C property - miscellaneous
12.Pending compliance with Order 5 and/or Orders 9 and 10, the de facto wife shall have the right to exclusive occupation of the Town C property.
13.Pending compliance with Order 5 or until the de facto wife vacates the Town C property to effect its sale (as the case may be) she is responsible for:-
(a)Making all mortgage repayments as specified within the terms of any loan agreement made between any registered mortgagee and the de facto wife;
(b)Paying all premiums to ensure the Town C property is covered by public liability and building insurance;
(c)Paying all council rates and other utilities that are connected to the Town C property;
(d)Maintaining the property in its current state of repair; and
(e)Providing reasonable access to the Town C property (with key/s provided to the appointed real estate agent) for inspection by prospective purchasers including that neither she nor any nominee on her behalf shall be present during such inspection/s.
14.The parties are restrained, and an injunction shall issue prohibiting them from encumbering the Town C property without the consent in writing of the other party or any mortgagee.
Enforcement
15.Each party is to do all acts and things and sign all documents necessary to give effect to these Orders.
16.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Miscellaneous
17.All outstanding applications are otherwise dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Following a tumultuous de facto relationship spanning 26 years, the parties are at odds about how to divide their property. There is a very small property pool of just over $390,000 of which it seems they will collectively lose about 7% in legal costs. The de facto wife wants to try and retain her home, whereas the de facto husband says it is inevitable that it will need to be sold and the proceeds divided to permit a fair outcome. What should I do?
Out of respect for each person’s gender and social status, other than parties, persons will be identified by their surnames and where applicable there will be an avoidance of the use of gendered pronouns.
These proceedings involve a financial dispute invoking Part VIIIAB of the Family Law Act 1975 (Cth) (‘the FLA’) between the applicant, MR DELMONT (‘the de facto husband’) and the respondent, MS SIMMS (‘the de facto wife’).
Where calculations have been conducted, at times I may have rounded up or down to the nearest AUD$100 and omitted references to cents.
There was no contest about the Court’s jurisdiction to entertain the parties’ respective property adjustment applications and as such the main property adjustment issues in the case were:-
·What are the parties’ property and superannuation interests?
·Why do the parties ask the Court to make a property adjustment order?
·What were the direct and indirect financial and non-financial contributions of the parties and how should the Court assess them?
·Are there any relevant future needs?
·What outcome will be just and equitable?
With that background and in broad compass, the de facto husband proposed that he receive 50% of the nett proceeds of sale of B Street, Town C (‘the Town C property’). In contrast, the de facto wife proposed that she pay the de facto husband $100,000 failing which the Town C property should be sold and the cash payment be made from the sale proceeds. In broad terms, that meant that he would receive an overall adjustment of about 34%.
For the reasons that follow, I will:
(a)make a declaration that grounds the Court’s jurisdiction including that the parties’ de facto relationship endured for more than two (2) years ending on a final basis in August 2020;
(b)make orders for the de facto wife to pay the de facto husband $125,058 which reflects an overall adjustment of property of 60% in favour of the de facto wife, failing which the Town C property shall be sold; and
(c)make various orders and declarations to otherwise finalise the parties’ financial relationship (s 90ST) including the discharge of (at least) any Legal Aid NSW caveat securing the de facto husband’s legal costs.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]:
62A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
PRELIMINARY ISSUES
Does the court have jurisdiction to entertain the parties’ applications?
The de facto husband says the relationship commenced in 1995 whereas the de facto wife says it commenced in mid-1994. Irrespective of the start date, between then and their separation in August 2020 (a fact conceded by the de facto husband during cross-examination) it is unchallenged that:-
(a)By 1995 they were in a committed relationship;
(b)There are three (3) adult children of the relationship including Mx D (‘SIMMS-DELMONT);
(c)During the de facto relationship the parties made varying financial and non-financial contributions towards the acquisition, conservation, or improvement of the property in which either of the parties had an interest;
(d)The parties’ relationship ended in August 2020 following events which culminated in Police attending the parties’ residence at the Town C property;
(e)The parties jointly hold an interest in the Town C property but only the de facto wife and one of the children have the benefit of occupation;
(f)In October 2021, the de facto husband commenced these proceedings and at the time he was (and remains) a resident of New South Wales.
My task is to make an evaluative factual decision as to when the de facto relationship started and broke down, or in other words to determine a jurisdictional fact: Jonah v White [2012] FamCAFC 200; 48 Fam LR 562 at [32].
Section 4AA sets out the meaning of a de facto relationship. I am satisfied that the parties were in a relationship as a couple living together on a genuine domestic basis such that there was a de facto relationship between them from no later than 1995 until August 2020. This is because by that time, the parties had commenced living together and sharing a common residence and also began sharing or enjoying the benefit of financial dependence or interdependence: ss 4AB(2)(b), (d) and (e), 90RD and 90SB.
Further and based on the unchallenged evidence of the de facto husband, I am satisfied that the circumstances of both the de facto relationship and of the applicant (at the time he initiated these proceedings) satisfy the geographical conditions identified within s 90SK.
Consequently, I intend to make declarations to the effect that the Court has jurisdiction upon which to proceed to entertain the parties’ property adjustment application: ss 90RD & 90SK.
I now turn to the relevant issues foreshadowed earlier.
What are the parties’ property and superannuation interests?
The parties did not formally address me on what my approach should be, however a joint balance sheet[1] was tendered and the circumstances of the case permit me to find that it is appropriate to adopt a “global” approach to the parties’ interests: see Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819 at 831 (‘Norbis’).
[1] Exhibit ‘A’
In doing so, I am entitled to make orders that have the effect of adjusting the parties’ non‑superannuation property and superannuation entitlements according to different proportions: see Norbis, Lenehan & Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615; (1987) FLC 91-814 at 76,148, C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220 at 79,646, and Petrellis & Petrellis [2023] FedCFamC1A 104 at [21].
Because the parties invite me to make a property adjustment order (s 90SM), it is important that I understand what the parties are “worth”.
With that premise in mind, the High Court in Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108; (2012) 47 Fam LR 481, (‘Stanford’) at [35], said that s 79(2) provides that the Court shall not make an order altering parties’ interests to matrimonial property unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. At [37] the High Court observed that:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of section 79(1)(a) itself, which refers to “altering” the interests of the parties to the marriage in the property … The question posed by section 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
Although Stanford related to a married couple, the principles apply equally to applications brought by de facto couples pursuant to Part VIIIAB of the Act: See for example, Lotta & Lotta [2017] FamCA 50 at [281] – [290].
So, having regard to the provisions of Part VIIIAB, what are the existing property interests of the parties, including their assets, liabilities, superannuation and financial resources – in other words what does the balance sheet consist of?
I use the phrase the balance sheet colloquially because (in reality) I break it down into two tables or a “his” and “hers” (so to speak) and then I calculate a short-form version which reflects the relevant totals drawn from the two tables.
With the above in mind, the de facto husband’s property interests have been reproduced:
Table 1 – schedule of de facto husband’s property interests
Description
Value ($)
Total ($)
Assets
Town C property
215,000
Total assets
215,000
Liabilities
CBA home loan account #...18
(34,678)
Total liabilities
(34,678)
Addbacks
Funds withdrawn at separation
24,000
Total addbacks
24,000
Superannuation
Super Fund 1
8,000
Total superannuation
8,000
Nett property
$212,322
Drawn from the same sources, the de facto wife’s property interests have been reproduced with the asterisked item being one that remained in dispute with my reasoning following:
Table 2 – schedule of de facto wife’s property interests
Description
Value ($)
Total ($)
Assets
Town C property
215,000
Total assets
215,000
Liabilities
CBA home loan account #...18
(34,678)
Liability to builder
0*
Total liabilities
(34,678)
Nett property
$180,322
Relying on the information set out in the above tables, the property pool consists of:-
·Nett total non-superannuation property $ 384,644
·Total superannuation interests $ 8,000
·ESTIMATED TOTAL PROPERTY POOL $ 392,644
Arising from the above, there was one issue in dispute that I need to address because there was some dispute or significant discussion about its treatment.
Liability to builder
The de facto wife deposed to her owing a debt to a builder for works carried out on the Town C property.[2] Other than her word, there was no business record tendered to support that assertion.
[2] Affidavit of Ms Simms filed 13.11.2023 at paragraph 232. In future, any references to the contents of this affidavit shall be prefaced with “S” followed by the numerical or alpha-numeric reference.
I place little weight on the de facto wife’s partisan evidence because:
(a)given the business nature of the alleged transaction, I have an expectation that a paper trail would exist for taxation purposes;
(b)the de facto wife has an obligation to make full disclosure and no source document to support her partisan evidence has been tendered;[3] and
(c)she bears an evidentiary onus to call witnesses to support a contended factual conclusion and she has not done so.[4]
[3] See rr 6.01, 6.03 & 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
[4] See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Blass & Blass [2022] FedCFamC1A 63 at [22]
As such the de facto wife’s contention that I should find the debt exists is rejected.
Why do the parties ask the Court to make a property adjustment order?
Both parties agree that the property pool needs to be adjusted.
The Court may rely on the factors set out within s 90SM(4) to inform its inquiry about the justice and equity of making property adjustment orders pursuant to s 90SM(3): see Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387 (‘Bevan’) at [83] – [89], [163], [169], [171]-[172].
The parties’ circumstances include that they no longer live together, there is a jointly held asset (with secured debts) of which only the de facto wife has the benefit of occupation and there has not been a common use from their collective property interests for years.
The undertakings and assumptions that governed the use of their property ended with the parties’ separation in August 2020.
I find that it is just and equitable that an order be made to adjust the parties’ interests in their property: see Stanford at [35] and Bevan.
What were the direct and indirect financial and direct and indirect non-financial contributions of the parties and how should the Court assess them?
At the commencement of their relationship each party was in paid employment and there was no evidence that either party brought in any significant property.
In about 1995 the de facto wife secured the disability support pension because of what I understand to be a longstanding and complex medical history.[5] In 2013, the de facto husband secured the disability support pension because of what I understand to be a chronic history of a mental health condition, severe depression and severe anxiety.[6]
[5] S-[263]
[6] Affidavit of Mr Delmont filed 19.04.2023 at paragraphs 35 & 87. In future, any references to the contents of this affidavit shall be prefaced with “D” followed by the numerical or alpha-numeric reference
Against this background, the parties’ capacity to gain and/or retain employment has been limited albeit overall, the de facto husband must have been employed for longer periods of time than the de facto wife. The de facto husband says he stopped working in paid employment in 1998,[7] about four (4) years after they commenced their relationship.
[7] D-[20]
The parties’ relationship experienced the “highs” of raising three (3) children and the “lows” of four (4) high conflict separations characterised by some form of Police intervention (across two States). During the varying periods of separation, a consistent theme was that the children remained living with the de facto wife and during some but not all periods of separation the child/ren spent time with the de facto husband (albeit the quantity and quality of that time was at times constrained by geography). In addition, during the relevant periods of separation, the de facto wife says that she has, in the main,[8] ensured payment of the utilities and mortgage repayments over the parties’ two respective homes and these contributions should be looked upon favourably.
[8] S-[256] & D-[37]. Although I acknowledge that the de facto wife’s evidence is for a broader period of time rather than just periods of separation.
In contrast, the de facto husband says his exclusion from these properties was not by his choice and given his limited means, he has had no capacity to make financial contributions other than towards his own accommodation which he says (at Town E) meant he paid more for rent than the mortgage repayments over the Town C property and now he pays $150 per week in board plus other payments for utilities, groceries and storage.[9]
[9] D-[36], [92]
From what I can make of the parties’ evidence:
(a)There was a six-month separation between late 1998 and mid-1999 when the de facto wife had primary care of two children in either the Sydney or Town F area;[10]
(b)There was about a nine-month separation sometime between early 2005 and mid-late 2006 when the de facto wife had primary care of the three children firstly in the Sydney area and then at Town G, South Australia;[11]
(c)There was at least a two-year separation sometime between 2009 and 2012 when the de facto wife had primary care of the three children in Town C;[12] and
(d)Post-separation only one of the children was still under the age of eighteen years, having just turned 16 years of age in 2020.[13] That child has remained living with the de facto wife.[14]
[10] S-[84], [96]-[100] & [105]
[11] S-[152]-[156]
[12] S-[189]-[191]
[13] S-[2.iii.]
[14] S-[3]
The parties were at odds about the extent of their roles as caregivers, although the de facto husband conceded that due to his mental health, the de facto wife did the majority of the parenting duties outside of the home.[15]
[15] D-[66]
Notwithstanding any contest in their evidence about what they did or did not do as carers for the children, either because the de facto husband was working outside of the home, the mental health constraints impinging on the de facto husband’s social capacity and/or the periods of time when the parties were physically separated, I can safely find that the de facto wife made a greater contribution as parent. This finding is supported by the evidence of Mx D.
As for other non-financial contributions this was a hotly contested area of dispute between the parties which I will now explore.
Having weighed up the evidence I am satisfied that the de facto husband made a greater contribution in undertaking the “outdoor” tasks usually associated to maintaining a residence and that the de facto wife made a greater contribution towards the “indoor” tasks related to the same goal. Primarily this finding is made because of the de facto wife’s debilitating physical symptoms attributed to her longstanding diagnoses. This medical history allows me to reasonably infer and conclude that indoor cleaning tasks would have been easier for her to undertake as opposed to outdoor more manual tasks on surfaces that would not always have been as easy to navigate given the physical limitations imposed on her mobility which initially affected her left ankle but has then spread to all of her joints.[16]
[16] S-[263]
As for home renovations to the property they purchased in Town G, South Australia and the Town C property - both the quality and quantum of time spent doing so by each party was again a source of much controversy. Clearly, the de facto wife’s physical capabilities to carry out works must have been impaired by her diagnoses (leaving the de facto husband seemingly better placed to undertake that work) but at the same time, so too the deficits in the de facto husband’s social skills must have caused him some difficulties in negotiating with various contractors which it seems he left to the de facto wife to navigate.
Overall, I am satisfied that the de facto husband made a greater non-financial contribution to the conservation and improvement of the parties’ real properties but, to be frank, where that takes me is questionable given the lack of evidence about how those efforts are reflected in the sale price/value of the parties’ real estate. Whereas, during periods of separation, it has been the de facto wife who has made the overwhelming financial contributions to this same issue.
The circumstances of this case do not warrant me undertaking an “audit” into the minutiae of who paid for what during the relationship and so I find that each party had a different role to play in how their limited incomes were used for collective benefit during the relationship.
As succinctly put by counsel for the de facto wife the parties “acted as a team”, although it is clear from the evidence the “team” was at times highly dysfunctional.
That dysfunction found a voice in many ways during the trial including a submission that there be an adjustment in the de facto wife’s favour because of the de facto husband’s perpetration of family violence making her contributions significantly more arduous: Kennon & Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1; (1997) 139 FLR 118 and Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158 (‘Keating’).
The decision in Keating emphasised that the imposition of family violence upon a party may lead to contributions being significantly more arduous and causing a discernible impact on the parties’ contributions.[17]
[17] Keating at [35]-[36]
The assessment of such an impact should not be undertaken in a “compartmentalised manner”.[18] As the Full Court said in Benson & Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1 at [35]:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss79(4)(a)-(c) or ss 90SM(4)(a)-(c) of the Act. The answer is 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 (citations omitted).
[18] See for example, Koch & Kest [2021] FamCA 408 at [26]
I cannot address this issue more eruditely than Gill J in Koch & Kest [2021] FamCA 408 (‘Koch & Kest’), so I adopt his reasoning as set out below:
27.It is necessary, in support of the contention that the contributions were rendered more arduous, to establish the incidence and effect of family violence and, as was said in Keating at [39], “an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions”.
28.As to the nexus, in Benson & Drury the Full Court said at [49]:
[I]t 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...
29.The court is then required to examine the matters set out at s 90SF(3) as to whether those matters point to an adjustment of the property.
30.Finally, the court is again to examine whether the result arrived at constitutes a just and equitable settlement of the property.
The de facto wife’s case centred on chronic physical abuse, repeated derogatory taunts and various behaviours aimed at coercing and controlling her: s 4AB. The de facto husband has been cross-examined about the de facto wife’s allegations.[19]
[19] Which were constrained by objections successfully taken by the de facto husband at the start of the trial
In addition, the parties’ adult daughter Mx D gave evidence[20] and was cross‑examined. Mx D presented as a witness of truth.
[20] Affidavit of Mx D filed 13.04.2023 which for future references shall be prefaced with “Mx D” followed by the numerical or alpha-numeric reference.
At times the de facto husband was evasive or minimised his acts of aggression, for example:
(a)Rather than agree that he had poured a bucket of water over the de facto wife’s head during an argument about renovations in their home at the Town G property, he said he had “purposefully spilt water on her” to stop her entering or staying in the room where he apprehended her feet would be cut from broken tiles;
(b)In denying specific allegations related to him engaging in physical abuse of the de facto wife in front of Mx D at the time of the first separation, the de facto husband refuted all the allegations put to him,[21] saying words to the effect of “we had plenty of big barney arguments, but I was not violent towards her (the de facto wife)” and “I was not in a happy place.”
(c)Denying he was ever abusive towards the de facto wife in front of any of the children but then, sending a text message to two of the parties’ children in early 2021 acknowledging my actions have affected the family;
(d)Saying that “at times” he was “rude” to the de facto wife but then appearing to deflect blame to both parties saying that he gave “as good as I got” (including calling the de facto wife “a fat bitch”);
(e)Proceeding to give uninvited evidence about the de facto wife calling him a “psycho fuck” which, from the overall presentation of his evidence, appeared (in part if not in full) to justify the various allegations made against him both by the de facto wife and his own daughter.
[21] Exhibit ‘W5’ was a NSW Police COPS event record produced by an attending officer at the scene who observed that “the victim had injuries to her body”.
Given the presentation of the de facto husband in cross-examination, the supporting documents tendered, the detailed evidence of the de facto wife and the consistencies between her evidence and that of Mx D, I am satisfied that the de facto husband engaged in acts of family violence including:
(a)directing abusive and derogatory language towards the de facto wife to the extent that Mx D (as a child witness to the behaviour) would often cry;[22]
(b)acting in a manner which would or would likely escalate to further verbal abuse against the de facto wife causing cause her to leave the family home and in doing so, the de facto husband would often refuse to permit the de facto wife to remove all or some of the children from his presence[23] or otherwise attempt to retain one or more of the children;
(c)causing the de facto wife to re-locate herself and the children to a refuge or the homes of other maternal family members to keep the children safe;[24]
(d)engaging in verbal abuse of the de facto wife escalating to pouring a bucket of water onto the de facto wife during the renovation at the Town C property;[25]
(e)engaging in a heated dispute with the de facto wife which ultimately caused a NSW Police officer to observe various physical injuries to the de facto wife.[26]
[22] Mx D-[11]
[23] Mx D-[23]
[24] See for example - Mx D-[26]
[25] Mx D-[39]
[26] Exhibit ‘W5’
Reflecting on these findings and the evidence more generally, I am satisfied that the de facto husband’s actions impacted on the de facto wife’s non-financial contributions towards:
(a)assisting the de facto husband with renovations to their two properties;
(b)the provision of welfare to the family as primary homemaker and parent.
To be clear, that evidence includes statements such as:
(a)The de facto wife beginning to believe that she deserved to be yelled at and that everything the de facto husband said about her was true;[27]
(b)The de facto wife acting differently when she anticipated a change in the de facto husband’s demeanour[28] which would cause him to get in a bad mood;[29]
(c)The de facto wife avoiding contact or the mention of the maternal family and friends;[30]
(d)The de facto wife wearing clothing that would cover bruises to her body;[31]
(e)The de facto wife avoiding making new friends;[32]
(f)The NSW Police reporting the de facto wife’s anxiety / fear about the de facto husband’s behaviours and the risks posed to herself and the children.[33]
[27] S-[73]
[28] S-[80]
[29] S-[74]
[30] S-[74]
[31] S-[69]
[32] S-[75]
[33] Exhibit ‘W3’
In addition, I observe that the de facto husband was the defendant to a few family violence orders protecting the de facto wife, as well as being the subject of a good behaviour bond and a charge of breach ADVO.[34]
[34] S-[103], [190], [236] & [247]; Exhibit ‘W6’
The consequences of these findings are that the perpetration of family violence by the de facto husband upon the de facto wife has had a significant adverse effect upon the de facto wife’s contributions.
Finally, post-separation the de facto wife has had the benefit of occupation of the Town C property and with that benefit she has paid for the outgoings on its conservation which her counsel calculated as amounting to almost $17,000 for various utilities and $122,600 for mortgage repayments.[35] Meanwhile the de facto husband has made no contributions of any significance including the non-payment of child support, and zero non-financial acts such as towards conservation and parenting. Instead, the de facto husband has been living with the paternal grandmother in a situation which neither of them sees as having any longevity and which causes the de facto husband to have to make financial contributions towards his board and the expenses of the household.
[35] Exhibit ‘W12’ & S-[256]
My task is to approach findings about such things as contributions in a holistic manner: Fields & Smith [2015] FamCAFC 57; (2015) 53 Fam LR 1 (‘Fields & Smith’), Bryant CJ and Ainslie-Wallace J at [168]; Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 24 (‘Dickons’) at [24]-[26].
Evaluations as to contributions inevitably involve value judgments and matters of impression and accordingly the evaluation of contributions cannot be treated as a mathematical exercise: see Lovine & Connor [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] & [41], Petruski & Balewa [2013] FamCAFC 15; (2013) 49 Fam LR 116 at [49] and Blandford & Esmore [2022] FedCFamC1A 67 at [14].
Without conflating ss 90SM(3) and 90SM(4)(a)-(c), when I weigh up and assess the myriad of contributions towards the property pool that these parties have made within the partnership that was their de facto relationship before, during and after separation some time ago, I assess the de facto husband’s contribution at 40% and the de facto wife’s contribution at 60%.
Are there any relevant future needs?
Sections 90SM(4) and 90SF(3) set out the legislative framework which informs my consideration, from which the following matters have been considered as being relevant to the parties.
Both parties have been long-term beneficiaries of a disability pension. There are no children under the age of 18 years and I am satisfied that there is no obligation upon either party to maintain another person. The de facto wife lives in the Town C property. The de facto husband has tenuous shared accommodation with the paternal grandmother and wishes to improve his standard of living by securing his own accommodation (rented or otherwise).
Having carefully considered the answers given by both parties, I accept that neither of them has any meaningful prospect of returning to paid employment. Yes, the de facto husband has worked casually - but the evidence about the future quantity and quantum of that pastime is too speculative for me to draw any safe inferences. The reality is that the de facto wife has significant health issues, and the de facto husband has significant chronic mental health diagnoses and/or symptoms. The de facto wife’s contention that the de facto husband’s work achievement would allow me to infer an income earning capacity for him is rejected because there was no expert evidence to support such a contention, there is a longstanding history that suggests otherwise and my observations about the de facto husband’s inter-personal skills both in his evidence and how he presented in the witness box do not allow me to find that he would be able to appropriately adjust in a social setting where he is placed under pressure to perform and/or endure attitudes or behaviours that he does not agree with.
Neither party has re-partnered.
Finally, as to any other fact or circumstance, I am satisfied that the justice of the case requires me to consider each party’s exposure to Legal Aid costs and the impact that the existing caveat will have over the Town C property.
Documents tendered show that each party has entered into a Charge Agreement with Legal Aid NSW and as a result:
(a)The de facto husband’s legal costs currently amount to $19,145.62 with a total approved cap of $25,058;[36] and
(b)The de facto wife’s legal costs currently amount to $11,469.22 with a total approved cap of $14,778.50.[37]
[36] Exhibit ‘H3’
[37] Exhibit ‘W13’
The documents did not identify any interest that may accrue if the payments are not made within a prescribed time limit. The parties submitted that there are two caveats secured over the Town C property to support the parties’ respective legal costs but only one caveat is identified within the NSW Land Registry Services Title Search attached to both copies of the real estate expert’s reports.[38]
[38] See the affidavit of Mx H filed 06.12.2023
In this case, the de facto wife would prefer to retain the Town C property and payout the de facto husband. Self-evidently her capacity to re-finance the existing debt and payout the de facto husband must be impinged by her weekly expenses (totalling $647)[39] and her limited income, derived solely from a disability support pension, NDIS benefits and board from one of her children, totalling $741 per week.[40]
[39] Financial Statement of Ms Simms filed 13.11.2023 at Part G
[40] Financial Statement of Ms Simms filed 13.11.2023 at Part D.
So, if the de facto wife can re-finance, what consideration do I give to the reality that without anything further, she will be solely responsible for the legal costs of the de facto husband?
I have had regard to the property pool and the issue about the Legal Aid costs. It is a small pool to be distributed between two parties with no assessed capacity for paid employment. In other words, what little capital they receive will likely be a source of funds to support the unexpected vicissitudes of life that their government benefits cannot meet.
I am satisfied that no adjustment is warranted to either party because their personal circumstances are similarly in a parlous state and because I will frame my orders to accommodate either the de facto husband’s Legal Aid debt being paid out from the cash payment he receives from the de facto wife; or failing her capacity to do so, then the formula to divide the balance proceeds from the sale of the Town C property shall ensure that each party’s legal costs do not impinge on the other’s share pursuant to the overall 60:40 property adjustment in favour of the de facto wife.
What outcome will be just and equitable?
The value of the property pool is $392,644. There is evidence of one caveat secured over the Town C property which will potentially impact on the de facto wife’s future entitlement to any sale proceeds, should she be able to pay out the de facto husband and have the Town C property transferred into her name. In making this observation, I am conscious of the obligation imposed by s 90ST.
The de facto husband currently holds or has had the benefit of $212,322 including a half-share in the Town C property. Conversely the de facto wife has the benefit of $180,322. Given the quantum involved,[41] no one sought for a superannuation splitting order in favour of the de facto wife and against the de facto husband’s existing entitlement.
[41] $8,000
So, reflecting on the property pool a 40% adjustment to the de facto husband amounts to $157,058 with 60% equating to $235,586. Excluding the Town C property, the de facto husband holds property valued at $32,000. To ensure the property pool is adjusted as specified above, a cash payment of $125,058 is required to be made to the de facto husband.
To finally determine the financial relationships between the parties - from the de facto husband’s entitlement (either by way of cash payout or nett sale proceeds), I will order that he take all steps to payout the Legal Aid debt and effect a discharge of any caveat. Ultimately this means that he will end up with something like $100,000 in cash plus the beneficial interest he has in other items within the property pool.
In my view a property adjustment of $157,058 is a just and equitable outcome because:
(a)From a modest pool he will have a lump sum which should improve his prospects of securing accommodation independent of the paternal grandmother and otherwise improve his current standard of living;
(b)These same findings can be made even after he pays out his legal costs;
The de facto wife will be left with either equity or sale proceeds equating to about $235,100 less her exposure to Legal Aid costs of about $11,500 leaving a remainder that will either secure her existing accommodation (if she can re-finance) or otherwise, from which she can secure a reasonable standard of living.
Of course, if the Town C property is sold, then both parties’ entitlements will be diminished by the costs of sale.
So overall having weighed up the parties’ circumstances and the way I can make property adjustment orders to reflect same, I am satisfied that my assessment will achieve a timely severance of the parties’ financial relationship on just and equitable terms.
CONCLUSION
Accordingly, the orders set out at the commencement of these reasons, in the form as prescribed, will achieve an alteration of the parties’ proprietary interests which is just and equitable.
If I did not make an order as sought, that is because there was insufficient evidence upon which I could make a finding to support such order. In addition, I have made the usual orders in relation to enforcement of the orders (to reduce the prospect of further litigation): s 106A.
In the circumstances, and for these reasons, the court makes property adjustment and procedural orders as specified.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 2 February 2024
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