Faulkner and Faulkner
[2011] FMCAfam 1016
•23 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAULKNER & FAULKNER | [2011] FMCAfam 1016 |
| FAMILY LAW – Property – domestic violence – contributions more difficult – post separation contributions – add backs. |
| Family Law Act 1975, s.43, 75, 79, 81, 106A. |
| C & C (2005) FLC 93–220 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93–143 S & S [2003] FamCA 905 |
| Applicant: | MS FAULKNER |
| Respondent: | MR FAULKNER |
| File Number: | (P)ROC 408/2009 |
| Judgment of: | Cassidy FM |
| Hearing date: | 15 September 2011 |
| Date of Last Submission: | 15 September 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 23 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fleetwood |
| Solicitors for the Applicant: | Madden Solicitors |
| Solicitors for the Respondent: | In person |
ORDERS
That:
(a)Within twenty-eight days of the date of these Orders, the husband do all acts and things and sign all such documents as may be required to transfer to the wife all of his right, title and interest in the real property situated at and known as [1] Property P in the State of Queensland and being the whole of the land described in the Certificate of Title as Lot [1] (“the real property) and the property situated at [2] Property P in the State of Queensland and being described as Lot [2]; and
(b)The wife simultaneously pay to the husband the sum of $41,390.00 and simultaneously indemnify the husband against all payments and apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever kind and nature.
In the event that the wife fails to pay the sum referred to in Order 1(b) herein:
(a)That the property situated at [2] Property P be listed for sale;
(b)The husband and the wife do all acts and things and sign all documents to facilitate the said sale; and
(c)That Order 1 herein be stayed until the sale proceeds become available.
Upon the sale of the property referred to in Order 2 herein, the proceeds be apportioned to:
(a)Pay to the husband a sum to be calculated that will provide him with a total of 20% of the property in the pool, taking into account the $6,750.00 he retains in add backs and the net sale proceeds;
(b)With the remainder to the wife;
(c)Upon the payment to the husband, that the husband do all acts and things and sign all documents to transfer the property referred to in Order 1(a) to the wife.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including any chose-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife);
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the beneficiary named therein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this order, the Registrar of the Federal Magistrates Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 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.
IT IS NOTED that publication of this judgment under the pseudonym Faulkner & Faulkner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
(P)ROC 408/2009
| MS FAULKNER |
Applicant
And
| MR FAULKNER |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the parties have asked me to determine competing applications for alteration of property interests pursuant to Part VIII of the Family Law Act 1975 (as amended) (hereinafter referred to as “the Act”).
Background Facts
I have taken into account the following facts which are not in dispute. The wife was born [in] 1968, so she is presently 42 years old. There is a dispute about the husband’s age. On the wife’s case, the husband was born [in] 1957 which would make him 53 years old at the moment. The husband’s case is that he was born [in] 1971. He would then be only 40 years of age. I have no birth certificate. I am unable to determine this issue.
The parties commenced cohabitation in around June of 1989 and [X] was born [in] 1990. She is presently 20 years old. [Y] was born [in] 1994. He is 17 years old.
In or around 1992, the husband suffered a work injury and stopped work at that stage. It seems from the evidence that the husband received a compensation payout in the 1990s in the sum of $54,785.85. The compensation was for the injury that he sustained in 1992.
A property (the former matrimonial home) was purchased using those funds in around January of 1995. On the wife’s case, it was approximately $40,000.00 that was paid, being $28,000.00 for the purchase price and the remaining $12,000.00 was for back rates and outstanding adjustments that were owing on the property.
The husband’s case is that the remainder of the money was spent on the relationship, costs of living and the property. The wife’s case is that the husband wasted the rest of the money on alcohol and drugs. There is no independent evidence to support either case.
The parties separated in February of 2008 and the wife moved in with her parents in their home in [omitted]. The parties reconciled briefly in 2008 and shortly after that, they separated and the wife returned to the former matrimonial home and lived with there with [Y]. The wife continues to live there today to the exclusion of the husband.
The divorce was finalised on 3 October 2009.
The Material
The material that I relied upon to come to a decision in this matter was as follows.
In the case of the applicant wife, the material was set out in her outline of case filed 28 April 2011. I considered:
a)The affidavit of Ms Faulkner filed 12 July 2010;
b)The affidavit of Ms Faulkner filed 29 October 2010;
c)The financial statement of Ms Faulkner filed 15 April 2011; and
d)A further affidavit of Ms Faulkner filed 15 April 2011; and
e)An amended initiating application filed 15 April 2011.
From the husband’s perspective, I considered the material set out in his outline of case filed 29 April 2011. I read:
a)The response filed 28 September 2010;
b)An affidavit of Mr Faulkner filed 28 September 2010;
c)A financial statement of Mr Faulkner filed 28 September 2010; and
d)A further affidavit of Mr Faulkner filed 15 April 2011.
I also considered two exhibits that were tendered by the wife on
15 September 2011, being:
a)Verdict and Judgment Records signed by the clerk of the Court dated 8 April 2011 in relation to convictions for breaches of the domestic violence order (exhibit 1); and
b)A Verdict and Judgment Record signed by the clerk of the Court dated 13 May 2011, being a conviction in relation to breach of a domestic violence order (exhibit 2).
Principles in the Application
Pursuant to s.79 of the Act, the court has the power to alter the interests of the parties in the property of the parties or either of them.
I must be satisfied that any orders that I make are just and equitable pursuant to s.79(2) of the Act. In achieving just and equitable orders, I must take into account matters specified in s.79(4) and the general principles referred to in s.43 and s.81 insofar as they are applicable.
In determining the applications of the parties, I intend to proceed according to a well established approach that was restated in Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93–143 (and subject to considerations with respect to superannuation, this approach seemed to be endorsed in
C & C (2005) FLC 93–220).The approach involves four inter-related steps:
a)First the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing;
b)Then the court should evaluate the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties;
c)Thirdly, the court should identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g) (the other factors) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established in Step 2; and
d)Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all of the circumstances of the case.
In matters where there are superannuation interests (particularly, those interests that are superannuation pensions), the majority of the Full Court in C & C (supra) (at paragraph 65) suggested that the preferable approach to superannuation interests was to treat them somewhat differently and separately from non-superannuation assets and the Court said:
“[65] In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a) value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s.79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s.79(4) being the matters in s.79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s.79(2) the orders in relation to the parties' property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.”
The court, however, also said:
“[61] Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as ``the first step'' in the determination of proceedings under s.79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s.4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.”
I intend to approach this matter by dealing with the superannuation interests and non-superannuation interests of the parties together. I am doing that because there is only $4,500.00 in superannuation in the pool.
The Asset Pool
The asset pool in this matter is agreed to this extent:
| Agreed Asset Pool | |
| [1] Property P | $175,000.00 |
| [2] Property P | $45,000.00 |
| The wife’s superannuation | $4,500.00 |
| The wife’s motor vehicle | $9,450.00 |
| Total Agreed Asset Pool | $233,950.00 |
The Add Backs
The wife’s case is that the husband disposed of property that she sets out in paragraph 54 of her affidavit filed 29 October 2010.
a)Two chainsaws to the value of $500.00;
b)One forty foot caravan to the value of $6,000.00;
c)One boat to the value of $5,000.00;
d)Two horse floats to the value of approximately $1,500 and $3,000.00 respectively;
e)Twenty-eight portable panels to the value of $2,000.00;
f)Two round bail feeders valued at $1,000.00;
g)One [omitted] Truck valued at $1,000.00;
h)Gates to the property valued at $300.00;
i)Wife’s jewellery valued at $15,000.00;
j)Motor bike and pushbike belonging to the son [Y] valued at $2,000.00;
k)Toyota [vehicle omitted] valued at $10,000.00; and
l)Saddles and horse blankets valued at $2,000.00.
The husband admits in paragraph 28 of his affidavit filed 15 April 2011 to selling the following item:
a)Three chainsaws for $700.00;
b)Twenty portable panels for $2,000.00;
c)Two cattle feeders for $300.00;
d)Two saddles for $500.00;
e)One boat for $1,000.00;
f)[omitted] Truck for $250.00; and
g)Toyota [vehicle omitted] for $2,000.00.
This totals $6,750.00.
I accept that it is appropriate that the sum of $6,750.00 be added back to the pool. I cannot make a finding with respect to the other items. The wife argues that the husband sold them. The husband denies that. So I am prepared to add back into the pool the sum of $6,750.00.
I do not intend to include the wife’s jewellery in the pool, given that there is a dispute about who possesses it. The wife says that the husband sold the jewellery whilst the husband says that the wife has got it. The husband claims the value is $14,500.00 and the wife claims the value is $15,000.00.
The pool then becomes the add backs plus the agreed asset pool.
| Assets | |
| [1] Property P | $175,000.00 |
| [2] Property P | $45,000.00 |
| The wife’s superannuation | $4,500.00 |
| The wife’s motor vehicle | $9,450.00 |
| Total Assets | $233,950.00 |
| Add Backs | |
| Chainsaws | $700.00 |
| Portable panels | $2,000.00 |
| Two cattle feeders | $300.00 |
| Two saddles | $500.00 |
| One boat | $1,000.00 |
| [omitted] Truck | $250.00 |
| Toyota [vehicle omitted] | $2,000.00 |
| Total Add Backs | $6,750.00 |
| NET ASSET POOL | $240,700.00 |
Initial Contributions
At the commencement of the relationship, the husband and the wife concede on their cases that there were really no significant initial contributions.
Financial Contributions during the Relationship
The husband’s case is that he made a significant financial contribution during the relationship when the payment of compensation for his injury that occurred at work was used in part to purchase the former matrimonial home. The wife is currently living in this home. This home was purchased from his father who was threatened with bankruptcy at the time. This contribution is not disputed by the wife.
The wife’s case is that the husband did not continue any form of paid employment after his injury occurred and she has worked during the relationship in paid employment. The wife’s unchallenged evidence, at paragraph 19 of her affidavit filed 29 October 2010, is that throughout the relationship, except for short periods when she had the children, she worked full time. She completed a TAFE course in [omitted] whilst she was working at [omitted]. She paid for the study with a scholarship of about $11,000.00. The wife’s case is that the respondent did not contribute financially, in any way, to the costs of her studies.
At paragraph 20, the wife said that when she was studying, she would get up at 4.00am and feed the animals, get the children ready for school and do the chores around the house. Then she would come home from work and perform further chores like cooking dinner, getting the children’s things ready for school and cleaning.
The wife’s evidence is that the respondent washed the dishes only once the entire time that they were together and he cooked a meal a couple of times. The wife said that the husband rarely spent time with the children. Her case is further that, after separation the wife made all of the rates repayments and paid all of the repairs and maintenance on the property. However the wife resided in the property for the majority of the time.
The husband has not paid any child support.
The husband’s case is that he assisted with the care of the children while the wife worked, including preparing meals. He swears at paragraph 22 of his affidavit filed 15 April 2011:
“[22] During the times the applicant was working or studying, I took care of the children and the general household. I would cook for the family and take part in the general household chores. The applicant would always be responsible for the laundry and she did all the vacuuming.”
Contributions
I accept that the wife has worked throughout the relationship and that the husband has been unemployed since approximately 1992. Aside from the contribution that was paid to the husband for his personal injuries, there have been no further financial contributions by him in this matter. I therefore accept that the wife has made greater financial contributions than the husband. I also accept that the wife has made greater non-financial contributions than the husband, in that the wife’s evidence is that she did most of the caring for the children and the housework. That really was not challenged on the husband’s case.
Contributions on the Basis of Domestic Violence
In S & S [2003] FamCA 905, the full court noted at paragraph 47:
“[47] … As Kennon has established, it is necessary to provide evidence to establish:
· The incidence of domestic violence;
· The effect of domestic violence; and
· Evidence to enable the court to quantify the effect of that violence upon the parties capacity to "contribute" as defined by section 79(4).”
In the present case, the wife alleges that her contributions were made more difficult because of the domestic violence perpetrated on her by the husband. I have in evidence certificates of conviction (exhibits 1 and 2 tendered on 15 September 2011) that show that the husband was convicted of breaches of domestic violence on various occasions.
| Breaches of Domestic & Family Violence Protection Act | |||
| Date of Offense | Plea | Plea Date | Outcome |
| 30/01/2008 | Guilty | 18/02/2008 | Ordered to pay fine of $400.00. |
| 14/08/2008 | Guilty | 19/11/2008 | Ordered to pay fine of $400.00. |
| 25/08/2008 | Guilty | 19/11/2008 | Ordered to pay fine of $500.00. |
| 07/04/2008 | Guilty | 19/11/2008 | Offender was sentenced to imprisonment for a period of 3 months with the whole term of imprisonment suspended for 12 months. |
| 13/02/2009 | Guilty | 10/09/2009 | Offender was sentenced to imprisonment for a period of 6 months. Offender was held in pre-sentence custody for 77 days between 26/06/2009 – 10/09/2009. The court declared that the whole term of imprisonment was already served under the sentence. Offender was released on parole on 10/09/2009. |
| 12/03/2009 | Guilty | 10/09/2009 | |
| 16/04/2009 | Guilty | 10/09/2009 | |
| 13/06/2009 | Guilty | 10/09/2009 | |
| 08/01/2010 | Guilty | 14/01/2010 | Offender was sentenced to imprisonment for a period of 6 months. Offender was held in pre-sentence custody for 7 days between 08/01/2010 – 14/01/2010. The court declared that the whole term of imprisonment was already served under the sentence. Offender was released on parole on 05/02/2010. |
| 04/05/2010 | Guilty | 05/05/2011 | Offender was sentenced to imprisonment for a period of 4 months. Offender was released on parole on 05/05/2011. |
The certificates of conviction evidence domestic violence incidents sufficiently serious to have resulted in terms of imprisonment. These all occurred after separation. However the wife was continuing to care for the child [Y] during that period.
The wife’s evidence of domestic violence during the relationship was set out in her affidavit filed 29 October 2010:
“[144] The Respondent started to become violent toward me in or around 1999.
[145] I recall the first time the Respondent assaulted me physically. I recall the Respondent had just gotten out of jail, I can’t remember what he had been to jail for, I think it was a home invasion. I remember the Respondent was smoking marijuana at the time but I don’t think he had started taking amphetamines yet.
[146] While the Respondent was in jail his cousin was residing in the house with me. His cousin’s name was Mr F.
[147] I recall that his friend had told the Respondent that I was having an affair with someone while he was in jail.
[148] I recall Mr F was there when the Respondent confronted me about it and we both told the Respondent it was all lies. The Respondent just lost it and started punching Mr F. Mr F had blood everywhere and his eyes were split open. I remember blood was coming out of Mr F’s ears.
[149] The Respondent then started laying into me. I ended up with bruising all over my body, he kicked me punched me.
…
[154] Things just got worse and worse. The Respondent would go off at the smallest thing. It was usually him accusing me of having an affair with someone.
…
[156] He would punch me in the face, drag me by the hair, throw me down the stairs, he would kick me in the stomach. I recall one occasion when he ripped all my clothes off and threw me out in the back lawn of the house. I recall the children were present on that occasion.
[157] He would constantly verbally abuse me.
[158] I can recall occasions when I would be sitting at the kitchen table. The children would be there and there would sometimes be other people there as well. I could just say something and the Respondent would punch me in the face out of nowhere and knock me off the chair.
[159] I can’t recall every single incident because it would happen so often. Sometimes my children [X] or [Y] will remind me of an incident that I had forgotten.”
The wife alleges very serious breaches of domestic violence in her affidavit after separation:
“DOMESTIC VIOLENCE – POST SEPARATION
[165] After separation the Respondent continued to threaten, abuse and assault me.
[166] Since he moved out of the former matrimonial home the Respondent has broken into the property on at least twenty (20) occasions and stolen things.
[167] There have been occasions when I have been at home and looked around to find the Respondent was in the house.
[168] The Respondent has continually sent me text messages and called me making threats. For example “I’ll burn you and the kids alive in the house”.
[169] I can recall one occasion when the Respondent came to the house. He was throwing petrol over the curtains screaming that he was going to burn the house down.
[170] In or around November 2008 I recall I was at the [omitted] Hotel with [X], [Y] and some other friends for [X]’s birthday. I recall the Respondent and his new partner turned up asking me to buy drugs for him.
[171] I recall I said to him: “I don’t know anyone with drugs, ask your packety slut to get your drugs”.
[172] I recall the Respondent picked me up by the throat and pulled me out of my chair. He got thrown out of the Hotel shortly after for arguing with someone else.
[173] When I got home that night the Respondent was hiding in my yard. I opened the door to get out of the car and the Respondent grabbed me. He took the house keys from me. I was with a friend Ms D. She ran to call the Police.
[174] I recall the Respondent dragged me into the house. He grabbed a knife and started saying things like “I’ll kill you”. I could tell the Respondent was off his head on drugs.
[175] I remember the Respondent jumped on my back, he pulled me back by the hair and held the knife under my throat and said “Which room do you want to die in”. I recall we struggled and I managed to throw him off somehow.
[176] I recall the Respondent hit me in the face numerous times. There was blood all over the house.
[177] I ran down the stairs to get away from him. The Respondent ran after me and tackled me. He picked me up. That was when I saw that his girlfriend Ms V had brought the car in for him. The girlfriend opened the car boot for him and the Respondent went to shove me into the boot.
[178] There were bags in the boot so he couldn’t fit me in there. The Respondent handed the knife to his girlfriend and pushed me in the back seat. They both then drove me out to a motel in [omitted].
[179] When we got there the Respondent realised the Police had tracked him to the Motel so he dragged me back into the car.
[180] We then drove along the dirt road to [omitted] airport. I remember the Police were talking to him on the phone. I remember we pulled over and he dragged me out of the car.
[181] His girlfriend handed him the knife and said “Cut her throat”.
[182] I recall the Respondent grabbed me by the throat, I was gasping for air and I blacked out. The next thing I remember is waking up in the back of the car and driving back to [omitted].
[183] I recall we stopped to get fuel and then went to the caravan park in [omitted] looking for somewhere to stay.
[184] I recall we then drove back to the motel in [omitted]. We stopped there and he fell asleep. When he woke up he drove me home.
[185] When I got home the Police called me. The children had been calling them. I told the Police what happened but nothing happened.
[186] That same day the Respondent forced me to go down to the Magistrates Court and ask for the domestic violence order to be revoked. I remember his girlfriend was there.
[187] I later arranged for the application to vary to be revoked on the basis that I had made the application under duress.
[188] A couple of weeks later the Respondent was back in Court for breaching the domestic violence order and I believe he was placed on a suspended sentence.
RECENT BREACHES OF DOMESTIC VIOLENCE ORDER
[189] Since this time the Respondent has continued to come to the house uninvited in breach of the order.
[190] I am constantly calling the Police and making complaints but nothing ever seems to happen.
[191] On the weekend of the Anzac Day holiday in 2009 a friend of Mr C told me he had seen the Respondent in the yard of the Property P property.
[192] On or about the Labour Day weekend 2009 [Y] told me that he had been at home alone when the Respondent came to the house and took some of our books from the guest house.
[193] I recall when I returned home from work, [Y] told me this. I went into my bedroom and found that the Respondent had placed my pillow in a vertical position on my bed with a cross sitting on top of it. I called the Police and made a complaint but to the best of my knowledge the Respondent has not been charged.
[194] The Respondent is constantly ringing me on my mobile telephone, abusing me and threatening me saying words to the effect of, “you will be living in the gutter, you and the kids, I am going to burn the house down”.
[195] On the weekend of 16 May 2010 the Respondent again turned up at the house. This time I was at home. The Respondent walked straight into the house as if nothing was wrong and sat down at the kitchen table. I told him to get out. I recall I was shaking. I asked him to leave, and the Respondent then called me names and asking me if I wanted to get a coffee. He left after about 10 minutes.
[196] I recall when I confronted the Respondent about putting the cattle on the property he told me in words to the effect: “They are mine, I can put whatever I like on my own property, I can come there whenever I like”.
[197] I believe the Respondent did this specifically to further intimidate me. I believe he is trying to show me he can still do what he likes, even though there is a Court order in place.
[198] I no longer know what to do to keep him away from me. I am afraid that someone will have to be killed before the Police will do anything.
[199] I have known the Respondent for over twenty (20) years. For at least ten (10) of those years I have been fearful of the Respondent and what he is capable of doing.
[200] For over ten (10) years the Police have been called to the former matrimonial home over domestic violence incidents and they have continuously made applications for Protection orders on my behalf.
[201] I know through experience that the Respondent is a manipulative person who is capable of carrying out his threats.
[202] The Respondent’s father has told me that the Police have called him and told him “Your son is capable of murder” or words to that effect.
[203] The Respondent has continually breached Protection orders in the past and was recently incarcerated for a period of three (3) months for those breaches and for breaching bail conditions.
[204] I believe there is currently a warrant out for his arrest for outstanding breach (sic) domestic violence order charges against me as this is what Police have told me.
[205] Even though I understand the Respondent is now on parole he is still not complying with the Protection order in relation to either myself or my daughter.
[206] I have no doubt that the Respondent will continue to threaten, intimidate, harass and assault me and my children in the future. I do not believe he can be stopped.”
None of this evidence was challenged by the husband.
Dr F gave evidence in the wife’s case. He is a psychiatrist and he was not cross-examined by the husband. Dr F’s evidence in his affidavit filed 28 January 2011 was that the wife:
“[9.1] … meets criteria for Chronic Post Traumatic Stress Disorder and there is Comorbid Depressed Mood probably to the extent of disorder.”
Dr F’s view is that the condition is caused by the frequent violence and abuse that the wife suffered from the husband during the marriage and after separation. His treatment and prognosis is that the wife should take anti-depressants regularly, for an indefinite period and probably in a higher dose. The wife has had psychological treatment but his view is that the wife is badly in need of further such treatment over a prolonged period. Dr F further gave evidence that the wife has become capable after an extended period of gradual increase in her hours as a [occupation omitted], to work twenty-four hours a week. The wife does this, Dr F said, with difficulty and at the expense of being unable to do anything much else. Due to her symptoms, particularly insomnia, exhaustion and lack of motivation, the wife is unable to exceed these hours. The cause of this is the trauma the wife suffered at the hands of the husband.
I accept Dr F’s evidence.
Assessment of Contributions
I am satisfied that the wife made greater contributions than the husband because of her greater financial and non-financial contributions.
I assess this at 20% both during cohabitation and post separation where the wife continued to care for the child [Y] and support him financially.
The wife suffered incidents of chronic domestic violence from 1999 to 2010. I am satisfied this made her contribution as a home maker and her post separation contributions more difficult. I assess that as a further 10%. Therefore the wife has made contributions of 80% and the husband has made contributions of 20%.
The Other Factors
The wife is responsible for the child [Y]. He will be eighteen in February 2012.
The income and earning capacity of the parents is not great.
I do not consider there should be any adjustment for s.75(2) factors.
Just & Equitable Considerations
The wife will receive 80% of the pool. This equates to $192,560.00.
I consider it is just and equitable that she retain the home, her superannuation and her car. The wife should pay the husband the sum of $48,140.00 minus what he retained as add backs ($6,750.00). Thus the wife should pay the husband $41,390.00.
In the event that the wife is unable to pay that amount, then the property at [2] Property P should be sold and the payment to the husband made out of the proceeds of sale that produces a result of 80% of the property to the wife and 20% of the property to the husband.
I do not consider it just and equitable to order that the property at [2] Property P be transferred to the husband because there has been significant domestic violence in this relationship and these parties should not be neighbours.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Cassidy FM
Date: 23 September 2011.
0