Horrigan & Horrigan (No.2)
[2018] FamCA 937
•16 November 2018
FAMILY COURT OF AUSTRALIA
HORRIGAN & HORRIGAN (NO. 2) [2018] FamCA 937
FAMILY LAW – PROPERTY – Application by wife for a division of property – Where wife seeks a Kennon adjustment – Where allegations of gambling – Add-backs – Allegations of violence – Where Court finds no basis for wife’s Kennon claim – Orders for a division of property where wife receives 22 per cent and the husband receives 78 per cent in circumstances where the Court is satisfied that it is just and equitable to do so.
Family Law Act 1975 (Cth)
Gillard & Gillard and Anor [2016] FamCA 841
Noogle &Noogle [2017] FamCA 140
Britt & Britt [2017] FamCAFC 27
APPLICANT: Ms Horrigan
RESPONDENT: Mr Horrigan
FILE NUMBER: HBC 690 of 2017
DATE DELIVERED: 16 November 2018
PLACE DELIVERED: Hobart
PLACE HEARD: Hobart
JUDGMENT OF: Benjamin J
HEARING DATE: 21, 22 & 23 May 2018 and 21, 22, 23, 27, 28 & 29 August 2018 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Marcus Turnbull
SOLICITOR FOR THE APPLICANT: Ogilvie Jennings
COUNSEL FOR THE RESPONDENT: Ms Gibson
SOLICITOR FOR THE RESPONDENT: Charmaine Gibson
Orders
(1)Mr Horrigan (‘the husband’) shall pay to Ms Horrigan (‘the wife’) $664,912 as follows:-
(a)$500,000 within ninety (90) days from the date of these orders; and
(b)$164,912 within fifteen (15) months from the date of these orders.
(2)The wife shall retain (as against the husband) the following property and, where necessary, the husband will do all acts and things including but not limited to signing all documents necessary to transfer or relinquish to the wife the following:-
i.M Street, J Town in Tasmania (‘the J Property’) and associated debt secured against the J Property and the wife shall indemnify the husband against any debts arising from the J property;
ii.Livestock from the real property K Street, L Town in Tasmania (‘the L Property): - items
1.67 Mixed age XB Ewes;
2.2 Rams;
3.1 Anglo Gelding horse;
4.3 Arab horses;
5.1 Miniature Pony;
6.2 Cows and Calves;
7.14 XB Lambs;
8.42 XB Lambs;
9.31 XB Lambs;
iii.The following Plant and Equipment:- 38 items
1.Mower;
2.two (2) baths;
3.Float;
4.Air Compressor;
5.Chainsaw;
6.Horse Bins;
7.Calf Feeders;
8.Socket Set;
9.Drill Press;
10.Horse Gear;
11.Electric Fence Unit;
12.GMC Tools;
13.Paslode Stapler;
14.Tool Box;
15.Fencing Gear;
16.GMC Saw;
17.Dog Kennels;
18.Blue Vice;
19.Old Hinges and used steel;
20.50lt Hot Service;
21.Oil Pump;
22.three (3) 1970s Pine Chairs;
23.Blue Chairs;
24.Bar Fridge;
25.Lister Shearing Machine;
26.Double Cab Stock Crate;
27.Narrow Handpiece;
28.Welder;
29.Welding Helmet;
30.Electrodes;
31.Grinder;
32.Scales;
33.Fiat Tractor;
34.Plough;
35.Round wool table;
36.12 spare panels not in the round yard;
37.Tools from shadow board;
38.Spinning Jenny (for wire)(red);
iv.Motor vehicle 1;
v.the Huon pine table at the L Property;
vi.the wife’s N Bank shares;
vii.all chattels, including but not limited to furniture and contents, personal apparel, goods and documents in the wife’s possession or currently at the Z Property; and
viii.all monies held in any accounts held in the wife’s name in any banking or other financial institution.
The wife’s Personal Items
(3)Within 30 days of the date of Order:-
a.the wife be permitted to enter the real property known as the ‘Z Property’ at W Street, Z Town in Tasmania with a member of Tasmania Police and any third party removalist (or member of family) to recover from the Z Property the wife’s furniture, plant and equipment and other items of personalty (including but not limited to old tools, plant and equipment) not expressly referred to in these Orders.
b.The parties are given liberty to apply for a period of 60 days in the event that there is a dispute as to which items of property are or are not available for the wife to remove.
(4)BY CONSENT the husband will provide to the wife as her property the following items within thirty (30) days from the date of this Order:-
a.a new endless chain with a three tonne capacity; and
b.a new pressure washer to a value of not less than to $300.
Property to be retained by the husband
(5)The husband will retain (as against the wife) the following property and, where necessary, the wife will do all acts and things including but not limited to signing all documents necessary to transfer or relinquish to the husband the following:-
i.the real property known as the Z Property;
ii.the real property known as the L Property;
iii.the debt/borrowings of the husband secured against the Z Property and the L Property in favour of the Australia and New Zealand Banking Corporation and the Department of State Growth (Tasmania) and the husband will indemnify the wife in respect of such debts on such properties;
iv.Livestock at the Z Property;
v.Livestock at the L Property;
vi.Plant and equipment except that plant and equipment to be retained by the wife;
vii.Horse round yard and gate;
viii.the Water Rights attaching to the Z Property and/or the L Property;
ix.the Business trading as the Horrigan Company;
x.all chattels, including but not limited to furniture and contents, personal apparel, goods and documents in the husband’s possession;
xi.all monies held in any accounts held in the husband’s name in any banking or other financial institution; and
xii.any entitlements of the Husband arising from his membership of any superannuation fund.
(6)The wife may retain exclusive occupation of the husband’s house at the L Property until thirty (30) days after the payment of the first amount referred to in order 1 above and the wife shall forthwith vacate that property within that thirty (30) day period.
(7)The spouse maintenance order made 19 October 2017 is extended for a period of ninety (90) days from the date of this order.
(8)Any costs application to be made in accordance with the Family Law Rules 2004 (Cth).
(9)All extant applications be dismissed.
(10)At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
(11)Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horrigan & Horrigan (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
FAMILY COURT OF AUSTRALIA AT HOBART FILE NUMBER: HBC 690 of 2017
Ms Horrigan Applicant
And
Mr Horrigan Respondent
REASONS FOR JUDGMENT
These are the reasons for the property proceedings
1.Ms Horrigan (‘the wife’) and Mr Horrigan (‘the husband’) had a particularly acrimonious marriage and this continued after their relationship ended. This judgment arises out of their inability to resolve questions of property adjustment and a subsequent application pursuant to s 79 of the Family Law Act 1975 Cth (‘the Act’).
2.There were also parenting proceedings between the same parties in respect of their son aged seven (‘the child’). After six days of hearing, those parenting proceedings were settled by consent orders made on 29 August 2018. I have had regard to those terms of settlement in the context of the adjustment of property between the husband and the wife.
Preamble
3.The property and parenting disputes were bifurcated, with the property applications heard in May 2018. Some evidence and further submissions were heard in August 2018.
4.A reader could reasonably ask, why were the applications in these proceedings between the same parties heard separately?
5.The short, but particularly uninformative answer, is that both property and children’s issues are complex. These proceedings also interacted with proceedings about a related young child, which added other layers of complexity of the issues to be addressed by the Court.
6.The issues concerned in this and the related case had become a veritable ‘Gordian Knot’; the solutions needed to be carefully and thoughtfully teased and worried out rather than being cut asunder by Alexander’s ancient sword.
7.There is no short or easy way to explain that complexity. So doing the best I can, I will endeavour to set it out and I invite the reader to bear with me in this long winded explanation.
8.Prior to their 20 June 2017 separation the husband and wife had the full time care of the wife’s grandson, F (‘the grandson’). He is now aged six, and is some 18 months younger than the child. The grandson had been living with the husband, wife and child for a number of years.
9.On 7 April 2016, more than one year before their separation, the husband and wife jointly commenced proceedings in the Federal Circuit Court for orders formalising the parenting arrangement regarding the grandson. Those proceedings were opposed by the grandson’s parents. There were eventually six parties to those proceedings:-
a)the husband (the step maternal grandfather);
b)the wife (the maternal grandmother);
c)the wife’s daughter (the grandson’s mother);
d)Mr U (who for many years believed he was the grandson’s father – as did the grandson);
e)the grandson’s biological father; and
f)an Independent Children's Lawyer.
10.By June 2017 the proceedings in the Federal Circuit Court were rapidly moving towards a final hearing. A family report had been ordered and it was released in November 2017.
11.In the meantime, in June 2017 the husband and wife separated in circumstances where there were allegations of violence by the husband to the wife and subsequently allegations of sexual violence by the husband to the wife. The husband asserted that the wife was both physically, emotionally and verbally violent to him.
12.On 3 August 2017, the wife commenced these proceedings in the Family Court seeking property orders against the husband. Shortly afterwards the husband filed a response to that application seeking different property orders and, relevantly, seeking parenting orders in respect of the child.
13.Consequently, by mid to late 2017 there were two proceedings on foot: one in the Federal Circuit Court where the husband and wife were jointly seeking parenting orders about the grandson and the second set of proceedings in the Family Court where both the husband and wife asserted that the other was not competent or safe to care for the child. The incongruence of this was apparent to all.
14.In that circumstance the Federal Circuit Court hearing date in respect of the proceeding about the grandson was vacated and that proceeding was transferred to the Family Court. Both sets of proceedings were listed before me. In the application about the child an Independent Children's Lawyer was appointed. That Independent Children's Lawyer was different to the one representing the interests of the grandson. The respective circumstances of the child and of the grandson were so different that one Independent Children's Lawyer for both children could have compromised the Independent Children's Lawyer’s obligation to one or both of the children.
15.At this stage there were now seven parties, including two Independent Children's Lawyers. It was a crowed bar table and there was an extensive list of issues to be addressed.
16.When the two sets of proceedings were listed before me for trial directions on 8 December 2017 the parenting proceedings in respect of the grandson and the parenting applications in respect of the child were listed for hearing over eight days commencing 20 August 2018. The two sets of parenting proceedings were not consolidated, but were directed to be heard simultaneously over that time in August 2018. The evidence in each proceeding would be available to be used in the other proceeding, having regard to the provisions of Division 12A of the Act.
17.The parties to both proceedings were concerned that the property issues between the husband and the wife, which were said to need three days given their complexity, would interfere with and lengthen the time to hear the complex parenting cases. This would have meant five of the seven parties would need to sit idly about while the husband and wife’s property dispute was being heard and argued.
18.As such the property application between the husband and wife were bifurcated from the parenting application. The property application was listed for hearing before me for three days in May 2018. They were in fact heard over those three days.
19.On 22 May 2018, while these property applications were being conducted, the parties and Independent Children's Lawyer to the parenting applications regarding the grandson approached this Court with terms of settlement and final Orders were made. These orders provided that the grandson would, in a short time frame, return to the primary care of his mother. The grandson now lives with his mother and her new partner. The evidence seems to be that the grandson and the child keep in touch, that the husband has a reasonable relationship with the grandson’s mother and the wife has a fragile relationship with her daughter.
20.This left the parenting applications relating to the child to be heard in August 2018.
21.This Court did not intend to deliver reasons on the property dispute until the parenting issues were either resolved or determined. This was for the obvious reason that the determination of the primary carer of the child and the parenting arrangements would have an impact on the considerations for property adjustments. The parties were aware of that approach and consented to it.
22.In the parenting hearing conducted over six hearing days in August 2018 evidence about the use of the wife’s credit card for gambling was provided by her adult son, Mr G.[1] He was cross examined on that material. With the knowledge and consent of the legal representatives of the husband and wife I have had regard to the evidence in the parenting proceedings, in terms of the property applications.
[1] Affidavit of Mr G sworn 20 August 2018 – including paragraph 29.
23.In addition, I had regard to the evidence of the parties as given in the parenting applications in determining the credit of the parties in the property applications. The parties were aware of and consented to this approach, including how I assess that evidence in the light of the other witnesses in the parenting proceedings.
24.The parenting proceedings were settled on the sixth day of the hearing on 29 August 2018. Consent orders were made providing that the parents have equal shared parental responsibility, and that the child live with the mother, but spend significant and substantial time with the father.
25.Whilst the number of days involved in this property hearing seems somewhat superfluous I make it clear that the evidence provided in the six days the matter was conducted in August 2018 related primarily to complex parenting proceedings.
26.I formally gave leave for each of the parties to re-open property to enable the provision of that evidence and to enable, if they wish, the legal representatives to make additional submissions at the end of this hearing.
Introduction
27.The parties have been in a relationship for about seven to eight years and there was significant differential in the initial contributions by each of the parties.
28.There was substantial agreement in relation to the assets and liabilities of the parties.
29.There is no issue that the parties’ relationship is ended and that there ought to be an adjustment of property. The wife says it ought to be adjusted as to 40 per cent to her and 60 per cent to the husband. The husband says that the property ought to be adjusted as to 20 per cent to the wife and 80 per cent to him.
30.There are issues arising in respect of determining this adjustment, namely:-
(a)the treatment in terms of contribution of the payments to the wife following the compensation claim ($105,000);
(b)how that money was expended, including whether it was expended on gambling;
(c)whether it was the wife or her children from a previous relationship, who engaged in significant regular gambling over the course of the parties’ relationship;
(d)the division of personal property;
(e)the assessment of the contributions of each of the parties having regard to:-
- The greater initial contributions by the husband;
- The wife’s claim pursuant to Kennon & Kennon;[2]
(f)the other adjustments in respect of contribution since the parties commenced cohabitation in 2009;
(g)the other factors, including the respective ages of the parties, their respective earning capacities.
[2] Kennon & Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1.
31.The wife has the care of the parties’ seven year old son.
32.There is a question as to whether there should be a delay in the end of the spousal maintenance order.
33.There was some discussion about child support however, counsel for the wife asserted there was no application for any departure in the context of these proceedings.
BACKGROUND
34.The wife is aged 47 years and she is a home maker by occupation. She has skills in the farming industry.
35.The wife suffers from a post-traumatic stress disorder. In that respect I accept the evidence of her psychologist Dr R.
36.The wife has been previously married. She has three children from previous relationships, a girl and two boys who are all over the age of eighteen years. The wife has previously had the care of a grandson aged six, about whom I have previously discussed. Consent orders were made in May 2018 that the care of that child would substantially return to his mother in early 2019, and evidence was given at the hearing that this had already occurred.
37.The husband is aged 64 and has been previously married. He has four children of his previous marriage, all of whom are adults. He has three grandchildren.
38.The husband asserts, and I accept, that at the commencement of cohabitation with the wife she had three children who lived with them at various times. I prefer the evidence of the husband set out at paragraph 10 of his trial affidavit.[3]
[3] Husband’s affidavit filed 27 April 2018 paragraph 10
39.In terms of health, in addition to post-traumatic stress disorder the wife has mobility problems in her left shoulder. She suffers other ailments although there was no medical evidence in that respect. I am satisfied that she is able to work in the farming industry.
40.The husband is in good health, although he is about sixteen or seventeen years older than the wife.
41.The parties have known each other for a long time, but only commenced a relationship in relatively recent times. They met again in May 2009 and in September 2009 they commenced a dating type relationship. Their relationship developed and by October 2009 they were cohabiting.
42.The parties married on 6 November 2010. It is not in issue that the parties separated on 20 June 2017, which was a relationship of slightly more than seven and a half years.
43.There is one child of the parties’ relationship. That child is aged seven. He lives with the wife and following a hearing and consent orders in August 2018 he spends time with the husband.
44.In her evidence the wife asserted that she began contributing to the property prior to late September 2009. I do not believe her in that respect.
45.The wife commenced property proceedings in this Court on 3 August 2017. The husband filed a response on 10 October 2017, responding to the property application and seeking orders in relation to the child. In October 2017 an order was made by this Court requiring the husband to pay interim spousal maintenance to the wife as follows:-
(a)the electricity and gas on the residence in which the wife and child currently live;
(b)the current level of health insurance for the wife and child;
(c)the sum of four hundred dollars ($400) per week to the wife’s N Bank account, such payment to be paid monthly in advance, the first payment being made seven (7) days from the date of this order; and
(d)provide credit facilities for the wife to spend up to $50 per week on fuel for her car and up to $35 per week towards the provision of telephone (land line and mobile telephone) expenses.
46.The evidence is that the husband has complied with that order.
47.The husband is a self-employed farmer and owns two properties, one at L Town and the other at Z Town. The wife owns a property at J Town.
48.The L Property has an agreed value of $1,800,000. The Z Property has an agreed value of $2,840,000 and the wife’s property at J Town has an agreed value of $145,000.
49.In addition the husband has water rights and significant plant and equipment and livestock.
50.The L Property was purchased by the husband prior to cohabitation and has significantly increased in value since that time. The wife has a home loan on her property at J Town of $45,000. The husband has loans against his farm property totalling $2,120,000.
51.The wife has a significant work history in terms of agriculture, although she may need to update some of those qualifications.
52.Given that the significant features in this case involve questions of credit as between the husband and the wife, I indicated to the parties that the reasons in this matter would not be delivered until after August and that I would take into account the evidence given by them in the parenting proceedings regarding the child in terms of these proceedings. I have done so.
53.In these proceedings any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context in which it is made.
EVIDENCE
54.The wife relied upon the following:-
(a)her amended initiating application filed 15 May 2018;
(b)her financial statement filed 15 May 2018;
(c)her trial affidavit filed 27 April 2018;
(d)her affidavit filed 17 August 2018;
(e)an affidavit of Mr G filed 22 August 2018;
(f)affidavit of Mr H filed 22 August 2018;and
(g)an affidavit of Dr R filed 27 April 2018.
55.In addition the wife tendered various documents during the course of the proceedings.
56.The wife’s counsel prepared a case outline which was tendered in evidence.[4]
[4] Exhibit E19.
57.The husband relied upon the following:-
(a)his response to initiating application filed the 30 November 2017;
(b)his affidavit filed 27 April 2018;
(c)his financial statement filed 27 April 2018;
(d)his affidavit filed 23 January 2018;
(e)his affidavit filed 9 August 2018;
(f)an affidavit of Mr Y Horrigan filed 16 August 2018;
(g)an affidavit of Ms X filed 15 August 2018;
(h)an affidavit of Ms BB filed 15 August 2018; and
(i)an affidavit of Mr AA Horrigan filed 16 August 2018;.
58.Various documents were tendered on his behalf and much of this evidence went to the parenting dispute.
59.The husband’s counsel tendered a case outline.[5]
[5] Exhibit E2.
60.Both parties’ case outlines were tendered as evidence of the parties’ positions and not as evidence of the facts contained therein.
The wife
61.The wife gave evidence in accordance with her trial affidavit and her statement of financial circumstances. The wife says she made money from wool sales and stock sales during the course of the marriage, but asserts that some of that was taken by the husband. She says that her expenses are under-estimated in terms of the car. Subject to that her material was read into evidence.
62.The wife asserted ownership of a number of items which the husband claims, although a number of these were acquired when the husband purchased a property shortly before the parties began cohabiting.
63.I have treated that material as being the husband’s property as it was purchased by him prior to the parties commencing cohabitation.
64.The wife gave evidence about two leases, one at L Town and another one which was the former CC lease.
65.She asserted that she would retain part or all of these. The husband gave evidence that these were wooded areas and that from his perspective it would seem not to be an issue.
66.The wife complained in chief that the husband sold her livestock and dealt with her animals. She asserted that he did not show her the financial records.
67.Given the cross-examination and her involvement in preparing documents, I find that evidence unlikely.
68.The wife denied excessive use of credit cards and excessive use of alcohol. She said she used the alcohol as a pain killer. It is clear, even from the wife’s diaries where she refers to an alcoholic beverage as a ‘…’, that the wife drank regularly. However, I do not find that it impacted on her capacity to work.
69.There was some evidence of purchase of alcohol. There was no analysis of that alcohol use and I am not satisfied, on balance, that the wife was abusing alcohol to the extent asserted by the husband or to the extent that it impacted on her contributions as home-maker, carer and directly in terms of the farm.
70.In many ways the husband acknowledged that the wife’s contributions to the farm in a physical, emotional and financial sense were significant, at least in the earlier years of the relationship. I have given that evidence of the husband significant weight.
71.I am satisfied that the wife received between $15,000 and $20,000 and $30,000 per year by way of parenting allowance, pension, farms assistance and Family Tax Benefits.
72.What was of concern were the allegations by the husband that the wife gambles. There was some evidence that she used his money to gamble and that the husband stopped that use very quickly.
73.The wife’s bank statements were tendered in evidence.[6] They showed a number of things. First, they showed that the wife was in receipt of Family Tax Benefits and other Centrelink entitlements, which sometimes were up to $1,400 or $1,500 per fortnight. This continued at various levels throughout the relationship.
[6] Exhibit E5.
74.Second and what was particularly concerning, was the amount of money applied in gambling. Thousands of dollars were spent in gambling organisations throughout the relationship. This continued throughout the relationship, at least from 2014 and I am satisfied from earlier times.
75.I do not accept the wife’s evidence that she did not look at her bank statements and that this was in fact gambling initially by one of her sons and later by both of her sons. There were transfers to and from accounts in relation to gambling and it is inherently implausible that the wife would not know about this. Given the evidence of the husband I am satisfied that she was involved in gambling significant amounts of money throughout the relationship.
76.This is, of course, not a negative contribution, but it minimises her contribution and it causes me to have concerns about how part or all of the $105,000 net that she received from her shoulder injury compensation was applied.
77.The wife complained that the husband was controlling in relation to funds and that often funds were not available to her. I reject her evidence in that respect. I prefer the evidence of the husband.
78.I accept that the husband was careful with money, given the wife’s abuse of gambling sites and the thousands of dollars which the wife applied in these sites. I do not accept that the husband was financially controlling.
79.The wife has a tendency to exaggerate in her evidence.
80.An example of this was in relation to some lime. The wife gave evidence that the husband used the lime for his purposes and that this was in lieu of payment to him for installing a horse round-yard fence which she said cost about $4,000. She later conceded that the cost of the fence was $5,800 when presented with the invoice.[7]
[7] Exhibit E4.
81.The wife was cross-examined in relation to the DD Firm debt. She gave various stories and then endeavoured to sheet home the liability to the husband, claiming that she could have paid less if he had passed on a telephone message.
82.This was her debt, and she was aware of it. It was a judgment against her and her attempts to shift the blame to the husband reflected on the poor quality and poor reliability of her evidence.
83.The wife conceded that she was receiving significant monies in Family Tax Benefits and in drought relief and financial support from the Government, including in respect of her grandson.
84.The wife asserted that the husband was jealous. I accept that evidence, although not to the extent contended by the wife. As I have indicated she has a tendency to exaggerate. An example of this was in respect of an event shortly after separation where the wife asserted that the husband tried to run her down with a motor vehicle. This is different to the evidence she provides in her diary, of which I have concerns about the veracity in any event.
85.I accept that from time to time the husband raised issues about the wife’s previous relationships.
86.The wife, in her interaction with the police, has at times been abusive and difficult to deal with. She uses ‘rich’ language.
87.I accept the evidence of the husband that the wife not only did not encourage the relationship with his children, but actively discouraged it.
88.The wife asserted that she had been the subject of physical and sexual abuse throughout the marriage. In support of those factors she set out details of the alleged abuse in paragraphs 111 to 148 of her trial affidavit.
89.Tendered in evidence were a series of copies of the wife’s diaries for 2014, 2016 and 2017. The wife asserted that the husband had entered her home and removed the 2015 diary. There was no cogent evidence that this had occurred.
90.The husband had given evidence that he had read an earlier diary of the wife, but that he was not aware of the later diary. He said that he had read the diary of 2012 which was not produced by the wife.
91.The material in the diaries to some extent, but not a complete extent, supports the assertions made by the wife. The husband in his affidavit denied the family violence and gave evidence of violence towards him by the wife.
92.It was submitted that no direct proposition was put to the wife that the diaries were fabricated or partly fabricated. That is indeed the case. However, it was clear from the evidence of the husband that he disputed the material in the diaries and denied the veracity of it.
93.At the commencement of the hearing I indicated to the parties that where any points were clearly in conflict I did not expect there to be point for point or item for item denial and matters put in cross-examination. That seemed to be accepted by counsel for each of the parties.
94.There was an episode of violence between the parties which was reported to the police in December 2011.[8] The wife relevantly said:-
… On Christmas Eve [the husband] made an offensive comment on Facebook to one of my friends. This caused a bit more conflict in our relationship when it was already strained. [The husband] had also accused me of having an affair with a male whom I am very close to. He then referred to me as a ‘slut’ and suggest that I sleep around. He also threatened to report me to welfare as a poor mother.
Whilst living at [S] [the husband] will not allow me to use the phone and resents me socialising with my friends. He won’t allow my friends to visit. If I am able to make phone calls [the husband] listens on the other phone or pulls the phone plug out when I am speaking.
Today [the husband] was abusing my friend over the phone. [The husband] then told me to ‘fuck off’ at out of the house and not come back. I tried to call 000 but he pulled the plug from the wall. I then went to use the other phone and he had pulled that from the wall also. I felt very threatened and left the house with our [the child]. I walked towards the ute and [the husband] took the keys. I walked off and [the husband] followed me calling me ‘whore’ and ‘slut’. [The husband then followed me down the road in the ute and skidded to a stop behind me and then drove around in front of me to cut me off. I continued to walk to the neighbours with [the child]. [The husband] abused me further calling me a ‘mole’ and ‘slut’. When I arrived at the neighbours I called the police.
[8] Exhibit E3(b) pages 567, 568 and 569.
95.The wife now asserts a more dramatic event in terms of that alleged incident. She says that the husband’s driving was much more threatening. The husband denies those circumstances.
96.In her affidavit[9] the wife gives a much more amplified explanation of what happened at the end of 2011, including that the husband chased her down in a car nearly running her over. This is an exaggeration of her apparent records of 2011.
[9] Filed 7 December 2017.
97.Another incident of violence was allegedly in December 2010 when the wife asserts that the husband slammed the lid of a square baler[10] on her stomach while she was pregnant with the child. I was shown photographs of the baler. The part where the wife said there was a hinged device had no hinges and was held on by butterfly screws.
[10] Exhibit E6.
98.It was exaggeration and undermined her evidence. The allegation in relation to the hay baler seems on balance to be an exaggeration.
99.At separation the wife provided a statutory declaration to the police on 20 June 2017.[11] In that statement the wife asserts a number of older events, but says that the husband had not been physically violent towards her in recent times.
[11] Exhibit E3(b) pages 570 to 572.
100.There are a number of serious allegations of sexual abuse. I have considered each one of those separately however, I do not intend to set them out in detail in these reasons. Some of those are set out in the diaries, some are not.
101.Sometimes the descriptions in the diaries may have an innocent explanation, sometimes which have been the subject of elaboration.
102.I am conscious that sometimes victims of family violence take a while to disclose the full extent of family violence. I have considered that in these determinations.
103.The wife executed a further statutory declaration to the police in relation to a relatively trivial incident where the wife asserted there was a breach of the family violence order. That declaration was sworn on 21 July 2017 and is contained in pages 573 through to 574 of Exhibit E3.
104.When cross-examined about this material at times the evidence of the wife was inconsistent, at one stage she said he (the husband) did not put his hands on her. It was curious that the wife says she took her diaries to the police, but did not show them to the police. Many of her answers to these questions were not responsive and she would go on about peripheral evidence.
105.There was evidence that the wife had interactions with the police over the years and had at times been difficult and abusive to the police. She asserts there was one incident where she was bruised, but declined to have photographs taken and the police took no action.
106.The wife asserted that in June 2013 the husband’s behaviour caused a fire which could have harmed her when she was doing some welding. I have read that paragraph, heard her evidence and heard the evidence of the husband. The wife was doing some welding and a small fire occurred. There was no injury to her, no need for medical attention and yet she was endeavouring to visit this problem to the husband as some form of family violence.
107.An example of the wife’s exaggeration is set out in paragraph 141 of her affidavit filed 27 April 2018. The wife asserts in that paragraph that she saw the husband drive towards her and that the motor cycle he was on connected with the left side of her hip and hand, causing her to fall to the ground suffering a bruise to her left hip and lacerations to her left hand.
108.This is alleged to have occurred on 8 August 2017.
109.The wife was cross-examined about her diary because she had not recorded anything in it about the husband attacking her with a motor bike. The interaction was more about the wife trying to take the key from the motor bike.
110.On hearing the wife’s evidence and watching her demeanour in the witness box I have grave reservations about the accuracy, the honesty and reliability of this witness.
111.It is of course possible for a witness to be fabricating evidence in one area and telling the truth in another.
112.I am troubled by the wife’s evidence including some evidence where she says there was violence towards her adult children where no evidence was called.
113.In terms of the evidence of the wife, I treat it with great care and I am satisfied that there are elements of exaggeration and elements of fabrication, such as that regarding gambling.
The husband
114.The husband gave evidence in terms of his affidavit filed 27 April 2018 and his statement of financial circumstances filed the same day.
115.In evidence in chief the husband said that he and the wife each paid some expenses in relation to the family holidays. The husband assisted in paying legal costs in relation to one of the children and asserted that it was out of his accounts that a majority of day care, and general expenses were paid.
116.The husband denied that he intentionally allowed animals to access the wife’s garden.
117.He gave evidence that he did not prevent the wife from undertaking further studies and encouraged her to so some part time work.
118.In relation to the allegations of sexual violence he vehemently denied any such behaviour and said that their relationships were at all times consensual.
119.He gave evidence that the hay baler did not have a hinged panel at the back which could operate in a way the wife asserted. He said that the panel was held in place by four wing nuts.
120.The husband was cross-examined in relation to his income. Clearly there had been serious impacts on his farming business in the mid 2000s with three years of drought. That is reflected in the 2010 financial statements,[12] which shows in terms of primary producer averaging details that he had earned income in 2006 of $7,624, 2007 of $51,449 and no income in 2008, 2009 and 2010 with an average income over those years of about $9,800.
[12] Exhibit E12.
121.The husband said that whilst his income may have shown nil some of the expenses were not actual spending such as depreciation and the like.
122.In 2009/2010 his depreciation was about $14,000 for each of those years.
123.The husband had prepared a business plan for 2017 to 2019.[13] That plan was tendered in evidence and showed that he was hoping that the farm would increase in productivity. That plan was prepared with the assistance of the wife.
[13] Exhibit E8.
124.His 2014 turnover was $293,887 with an income of $4,052.
125.His turnover in 2016 was $246,866 with an income of $4,070.
126.His turnover in 2017 was $402,240 with an income of $18,414.[14]
[14] Exhibit E11 tax returns and statements for 2014, 2015, 2016 and 2017.
127.His tax returns showed his turnover and taxable income in the 2015, 2016 and 2017 years. In 2015 the farm income was $359,337 with a net income of the year of $4,413.
128.The years 2005, 2006 and 2007 were in drought, and the husband owned about 11,500 sheep at the commencement of the drought. By the time the drought had concluded the stock had reduced to 4,800. The husband said it was a bad time and positively said that the wife was a ‘top roustabout’ and the commencement of their relationship was positive for him.
129.The husband had a modest income. He had money to meet the needs of the family, although he relied upon the wife in terms of assisting him on the farm. He provided accommodation for the wife and her children of previous relationships.
130.In evidence the husband conceded that the wife should be entitled to the property set out in her amended initiating application filed 15 May 2018, being items set out in 1.1 with the exception of the horse round yard and gate.
131.The husband asserted that he paid for the horse round yard and gate.[15] He said that the round yard of which he had control had some 10 panels and the wife had 12 spare panels. He was happy for the wife to have those panels which were not part of the round yard.
[15] Exhibit E4 purchase price $5,801.
132.The husband was asked about an endless chain. He said that the endless chain he had was damaged, but workable and that there was a smaller one. However, he said he would purchase a new one for the wife with a three tonne capacity.
133.The husband also said he would purchase a pressure washer for the wife to a value of up to $300.
134.There was an issue between the parties as to about $24,000 in sheep purchased by the husband but using the wife’s money. He said that stock was traded by her and that there was some exchange of sheep at some stage.
135.The husband acknowledged that in 2014/2015 there was another drought and that they needed assistance.
136.The husband wishes to retain ownership of: the farming properties the Z Property and the L Property; his livestock; water rights, plant and equipment; household contents and the like. The parties both submitted that each should retain their own modest superannuation entitlements.
137.The wife wishes to retain: her property at J Town; her livestock; equipment; savings; shares; Motor vehicle 1; and household contents. As I indicated earlier, there was a sense of agreement as to which items ought to be made available to the wife. The wife sought access to the Z Property to take such property and items of personality which belong to her. I expressed concern that this may simply give rise to further conflict and accordingly the parties arranged for the collection of personal items to take place between the May hearing and the August hearing. Hearing nothing further I infer that that issue has been satisfactorily resolved.
138.The husband said he had little knowledge of how the wife’s compensation payment of $105,000 was spent by her. He said, and I accept, that the wife contributed $4,000 or $5,000 towards either the lime for the horses or the ground fence. He said that he provided funds mostly for food, although the wife from time to time assisted out of monies she received from the Government.
139.He said funds were available for the family through the farm overdraft and through credit cards. As I indicated earlier, he conceded that there were difficulties in 2014/2015 during the drought.
140.The husband said that the wife provided significant support, particularly when shearers were about. His evidence was that the parties shared expenses. In many ways he was positive in respect of his remarks about her. Similarly, he was positive in respect of his relationship with the wife’s sons from a previous relationship. He denied that he assaulted them as was asserted. He said he was proud of them and what they had done.
141.The husband conceded that at times he asked the wife about previous relationships and that some men, in his words, were ‘hanging around’ at some stage.
142.It was asserted to the husband that his mother and daughter were rude to the wife. He was quite emotional in his evidence and denied that circumstance.
143.The husband said that he was aware that the wife had a shoulder injury. He asserts that it did not impact on her ability to work on the farm, although she occasionally complained of pain in her shoulders.
144.His evidence was clear and at times quite emotional. His evidence was obviously coloured by his own views of events. However, I am satisfied that he endeavoured to tell the truth.
D R
145.Dr R is the wife’s treating psychologist. He first saw the wife in August 2014 and the next time was in July 2017, shortly after the parties separated. He has seen the wife on numerous occasions since that time.
146.He is of the view that the wife suffers post-traumatic stress disorder.
147.The basis upon which he grounded his diagnosis of post-traumatic stress disorder was essentially wholly the wife’s self-reporting.
148.Dr R was cross-examined by counsel for the husband and gave a longer history of abuse of the wife by a close family relative when she was a child, which the wife has recently reported to police, and of a previous violent relationship.
149.I accept that the wife has post-traumatic stress disorder and I am satisfied, given the evidence of her psychologist, that it is grounded in part on the high conflict nature of the parties’ relationship, but also significantly arising from the difficulties of her past history. I accept the evidence of Dr R and his diagnosis as reliable.
Affidavit Mr G filed 22 August 2018
150.Mr G provided relevant evidence contained in his affidavit filed 22 August 2018.
151.Mr G is aged 21 and is one of the children of the wife.
152.In his affidavit Mr G deposed:-
28.I opened up an on line account with gambling site Spin Palace. I opened it under my Mum’s name and used her Visa debit card. I just wanted to win my Mum money so that she and [my brothers] could get away from [the husband] as I was so worried for my Mum’s and [my siblings] safety.
153.Mr G was examined and cross-examined in relation to that material.
154.He lived with the parties during their relationship, but was away from the parties’ home for about seven months in 2012. He said in relation to his gambling that he gambled once or twice every two weeks and in late 2015 he ceased the gambling. In re-examination he said that he had repaid part of the money to his mother, about $400 or $500 from his 2016 taxation return, and about $1,800 to $1,900 from his 2018 taxation return. He was hoping to repay his mother about $2,500 this year. I have treated him as having repaid about $2,200 to $2,400 to the wife.
155.I am not satisfied that Mr G gambled to the extent that he asserted. He generally endeavoured to give evidence truthfully, but was strongly aligned to his mother’s cause.
FINDINGS
156.The wife has a history of being confrontational with people, including police.
157.The wife asserts that her sons had operated an account in her name to gamble on line. She asserts that she was so busy that over a period from June 2014 until discovery during these proceedings, that she was not aware that there had been gambling on her account.
158.Exhibited in evidence were the bank records of the wife from June 2014 until June 2017,[16] which was a period of about three years.
[16] Exhibit E5.
159.Tendered in evidence was a schedule of the money gambled from that account over that three year period.[17] This was not a complete set of bank statements and there was likely about two months missing and there were some pages that were illegible.
[17] Exhibit E13.
160.Notwithstanding that circumstance it shows that the sum of about $98,249 was gambled and that there were returns from the gambling establishment of between $54,000 and $58,000.
161.The net loss over the period seems to be about $40,000. The amount gambled on a monthly basis was sometimes as high as $8,318 in one occasion and as low as $710 on another occasion. Almost all of the months involved expenditure in excess of $1,000; sometimes the expenses were $2,000 and $3,000 or $4,000.
162.An examination of the account shows that the payments were not single payments a month, but often numerous payments per month.
163.The assertion by the wife that she did not know of this expenditure is inherently implausible. I do not believe her.
164.The question of the gambling was raised in the earlier proceedings regarding interim spouse maintenance. The wife called evidence of her sons as to their use of this account for gambling purposes. Their evidence in relation to gambling is unreliable. In particular, I am not satisfied that Mr G gambled to the extent that he asserted. He generally endeavoured to give evidence truthfully, but was strongly aligned to his mother’s cause and his evidence about this controversial issue was unreliable.
165.The husband gave evidence that there was gambling by the wife on his account in about 2012. The husband put a stop to the gambling on his account at that time.
166.I do not accept that the wife did not access her accounts and I do not accept that she did not know these transactions were being conducted. Given the evidence on the documents, I am satisfied that the wife has gambled regularly and consistently through online gambling throughout the relationship.
167.I am satisfied that she lost at least $40,000 over the three years from June 2014.
168.The wife received substantial amounts of money from the Government in terms of entitlements for her, the family and drought relief. Her evidence was that it fell into a number of areas, the first being Family Tax Benefit A and B in relation to her children and the child of the relationship. The second being drought relief over a period of time, although she could not define the period. The third being funds for care of her grandson who lived with the parties for a number of years.
169.In 2014 the wife was receiving about $655 per fortnight by way of Family Tax Benefit A and B and about $731 per fortnight for the care of the wife’s grandson and for drought relief.
170.In July 2014 the wife also received lump sums of $2,898 and $4,241. Seven thousand dollars of those funds were transferred by the wife to another account.
171.As to the $105,000 received by the wife for compensation I am satisfied that it was applied partly to the family and partly in support of the wife’s gambling. I have taken this into account in terms of contribution.
PROPERTY OF THE PARTIES
THE LAW
The principles adopted in this property adjustment
172.In this matter my task is to:-
a)Identify, according to ordinary common law and equitable principles, and then value the property, assets, financial resources and liabilities of the parties;
b)Determine whether it is just and equitable to make an order altering those interests and if so:-
i)Identify relevant contributions pursuant to s79(4)(a)-(c) of the Act and assess them;
ii)Consider relevant matters referred to in s 79(4)(d)-(g) of the Act; and
c)Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
173.In Stanford v Stanford (2012) 247 CLR 108 the High Court set out the first step requiring the identification of the existing legal and equitable interests in property of the parties.
174.Thereafter the Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests. Often, given the circumstances of the parties, that step will be uncontroversial; as is the case here where the parties separated in June 2017 and given the property applications of both. Consequently, having regard to all the facts, circumstances and findings, I have no difficulty in concluding that it would be just and equitable to make a property settlement order as between these parties and I find that it is just and equitable to make a property settlement order.
The assets and liabilities of the parties
175.The parties agreed to a balance sheet. It was tendered in evidence on 29 August 2018.[18] Leave was given to update some of those items when the matter resumed before me in August 2018. There were some further anomalies in the parties’ balance sheet and a new agreed balance sheet and a new exhibit was adopted by the parties in October 2018.
[18] Exhibit E31.
176.The parties’ property was agreed and is as follows:-
The husband’s assets and liabilities
Z Property - agreed $2,840,000 L Property - agreed $1,800,000 Livestock valuation at Z Property- agreed $334,568 Livestock valuation at L Property - agreed $116,288 Livestock valuation at L Property - agreed $110,500 Water rights - agreed $250,000 Business trading as Horrigan Company $0 Motor vehicle 2 - agreed $0 EE Bank savings - agreed $135 Plant and equipment - agreed $214,490 Household contents (H) - agreed 0 Add-back agreed legal costs $31,997 FF superannuation of husband- agreed $1,460 Borrowings (ANZ & GG Bank) - agreed ($2,120,000) Car Finance - agreed ($37,247) Bank accounts (H) - agreed ($42,305) Total $3,499,886.00
The wife’s assets and liabilities J Property - agreed $145,000 Livestock - agreed $21,660 Plant and equipment - agreed $5,690 N Bank savings - agreed $2,663 N Bank shares - agreed $1,838 Motor vehicle 1 - agreed $6,500 Household contents - agreed $0 Add-back agreed legal costs $4,338 Superannuation – plan 1 FF Super - agree $119 Secure funding for her home - agreed ($45,000) DD Firm - agreed ($7,716) Outstanding rates and taxes on wife’s home - agreed ($396) Total $134,696.00
177.The net property of the husband and wife amounts to $3,634,582.
178.Each of the parties has modest superannuation: the husband $1,460 in an accumulation fund and the wife $119 in an accumulation fund. Given the modest nature of those funds and that the Court could not, in any event, undertake a splitting order, I have simply included that as part of the single pool.
179.The water rights were acquired by the husband in 2016 and the husband asserts, against interest, that this has a value of $250,000. There was no evidence to the contrary and the wife conceded that this was an admission against interest. I have accepted the husband’s evidence in that regard.
180.The wife and her previous husband had entered into some form of commercial arrangements which incurred a liability with a firm of Hobart solicitors, DD Firm. The wife claims that she owes $7,716. The wife says it was her former husband’s debt, although she concedes that there is a judgment against her in the sum by the solicitors. The wife endeavoured to blame part of this against the husband.
181.In any event she is liable for that debt and it was in place before the parties’ commenced cohabitation or commenced jointly contributing. This should remain a liability of the wife. The wife said that the husband had not given her a message about this debt which may have enabled her to reduce the amount outstanding. I do not believe her. In any event, it is a debt incurred by the wife prior to cohabitation and I have taken it into account as a liability at that time and a current liability of the wife.
182.I have had regard to this liability in terms of the net value of the property contributed by the wife at the commencement of the relationship.
183.Each of the parties have spent modest amounts of money on legal costs. At the request of the parties I have added those as liabilities of each party, which is a sensible course to adopt.
184.At the time of cohabitation the wife owed about $57,000[19] and now owes about $45,000 on her property at J Town. This loan has been reduced by about $12,000 over the period of the parties’ relationship.
[19] Exhibit E3 page 252 and 253.
CONTRIBUTIONS
185.I am satisfied that the wife engaged in significant gambling throughout the marriage and through that gambling lost at least $40,000 between 2012 and 2017. I have had regard to that in terms of contribution. That gambling was done contrary to the husband’s views about gambling and without his knowledge or consent.
186.Given that the wife has the primary care of the child and that the husband will have the farming business which is going quite well at the present time, I am satisfied that his income earning is and will remain greater than the wife’s income earning capacity.
187.The wife asserts that at the commencement of cohabitation she owned the J Property, household contents, plant and equipment, livestock (sheep and cattle and horses of unknown value) and her N Bank shares. At that time she owed about $56,589 against the property at the J Property and the debt to DD Firm.[20] The wife did not disclose the debt to the DD Firm as a liability at the date of cohabitation however, I infer that this was an oversight.
[20] Wife’s trial affidavit paragraph 50.
188.As to the liability on the J Property, the wife’s evidence is supported by a statement from the financier from July 2009 to December 2009.
189.The bank statement showed regular payments into the household account of $120 per week or per fortnight. A recent statement for the period 1 January 2017 to 30 June 2017 shows about $45,000 owing on the loan at that time and shows regular payments of $120 per week. The parties agree that the loan balance now is about $45,000. It has been reduced by about $12,000 over the period of the relationship. In her financial statement the wife deposes that she receives rent of about $120 per week from the J Property. She deposes that the loan repayments are $120 per week and rates and levies of about $17 per week.
190.The parties have, through the rent and other funds, reduced the mortgage on the property over the period of their relationship and following their separation. The parties have agreed that the J Property has a current value of $145,000 which accords with the evidence of a single expert valuer dated 17 November 2017.[21]
[21] Exhibit 3A page 106.
191.No historical valuation of the property was provided and the wife asserts that she did not know the value of that property at the time of cohabitation.
192.For the purpose of these proceedings I can only infer that it had a value of no more than $145,000 at cohabitation.
193.At the time of cohabitation the husband owned the farms Z Property and L Property together with plant, equipment, livestock, household contents, bank accounts and these properties were subject to debts.
194.There is some evidence of valuation of properties at the relevant time. The L Property was purchased by the husband in 2009, prior to the commencement of cohabitation with the wife, and I find prior to any contributions by her, for $1,250,000.
195.As to the value of the Z Property, the husband has endeavoured to persuade the Court that its value was $1,972,300 at the commencement of cohabitation by applying some valuation principals. I indicated to counsel for the husband that I was reluctant to do so as that could only constitute an informed guess.
196.However, there is some evidence of value in the form of the financial statements for the farming business for the period 1 July 2009 to 30 June 2010.[22] In that document the balance sheet shows the L Property at a value of $1,245,419.
[22] Exhibit E12.
197.That is relatively consistent with the figures provided by the parties.
198.It shows the other farm as comprising three parts: land at cost $98,830; original cost $802,361; and asset revaluation of $1,798,809. This is a total value in 2009 of $2.7 million dollars.
199.Given that this was the valuation in the balance sheet and that the husband asserts, against interest, that its value at the time of cohabitation would have been $1,972,300 I accept the lower figure as to the estimated value at the time of cohabitation.
200.The husband says that after the acquisition of the L Property he had liabilities of approximately $1,885,000 at the time of cohabitation.
201.That is consistent with the liabilities asserted in the balance sheet and I accept that sum.
202.The balance sheet shows that as at 30 June 2009 the husband had livestock to the value of about $100,000 and as at 30 June 2010 stock to the value of $107,000 approximately. I am satisfied that the husband had livestock to the value of about $100,000 at the time of cohabitation.
203.The parties agree that the value of the plant and equipment at the time of the hearing is $214,490. No specific evidence was provided as to the value of plant and equipment other than in the balance sheet which shows plant and equipment as at 30 June 2009 at about $140,000.
204.Each of the parties had furniture and furnishings and they have not been valued. Counsel for the wife asserts that the wife contributed 16 per cent towards the initial contribution. The total net assets of the husband were approximately $3.4 million dollars and liabilities of $1.85 million dollars which left a net balance of slightly in excess of $1.5 million dollars at the commencement of cohabitation.
205.The wife’s J Property had a maximum value, if that, of $145,000 less the mortgage, therefore at best it had an equity of $90,000 and if the wife added in the about $105,000 she subsequently received for her shoulder injury, and deducted the debt to the solicitors DD Firm, at best she had about $195,000 contribution, which is 13 per cent of the asset pool.
206.Interestingly that is three per cent more than asserted on behalf of the husband and three per cent less than that asserted by the wife. The amount contributed by the wife on those calculations by the wife are likely to be high given the findings I have made about the wife’s application of significant funds towards gambling and there being no evidence of value of the J Property other than the current value.
207.I am satisfied that the husband’s financial contributions were far greater than those of the wife at the time of cohabitation.
208.At the time the parties’ commenced cohabitation the wife had the care of the three children of her previous relationships. They stayed with the parties on and off during the course of the relationship. These children were supported by Government benefits, which is not to the credit of either the husband or the wife as I infer that those benefits would have, at best, met the basic needs of the children, and more likely the children required additional funds to assist them.
209.The wife received drought relief for which she applied after a suggestion by the husband. This assisted the family through the drought which occurred during their relationship. I do not see this as a contribution by one or the other, but simply a benefit that was made available to this family in the dire circumstances which the drought inflicted upon them.
210.The husband and wife had the care of the wife’s grandson for a period of time and consequently received Government assistance for that child. I make a similar finding in relation to Government assistance in that, at best, it met the basic needs of the grandson and more likely other monies were needed to be added to provide for that child.
211.In addition the wife received other benefits including Family Tax Benefits for the child of the relationship. These were monies provided by Government and do not go to the credit of either one or the other of the parties; it was assistance to this family in the care of their child.
212.Throughout the relationship the wife received benefits from the Australian Government in various forms. One was the Family Tax Benefit Part A and B which as at the date of hearing, amounted to some $241 per week.[23]
[23] Wife’s financial statement filed 15 May 2018.
213.The parties’ income from other sources were modest during the course of the relationship. The wife may have had a deemed income of about $100 to $120 per week in respect of the money she derived from the rent of her home. This however was wholly subsumed in the loan repayment on that property and in the payment of rates and the like.
214.The husband had a very modest income given the drought which ended in about 2009 and the drought in the middle part of the parties’ relationship.
215.The Family Tax Benefit related initially to the three children of the wife when the parties first commenced cohabitation then after the child was born it related to him. The wife’s daughter left the home before 2012 and the evidence of the wife was that one of her sons left in 2012. In any event, that Family Tax Benefit was applied to feed, house and clothe the children of that previous relationship.
216.The other benefit of the parties was the drought benefit over a period of time and although it was paid to the wife I am satisfied this related to the needs of the whole family. Similarly, there was money paid by the Government to the wife for the care of the wife’s grandson which has now presumably ceased.
217.It was submitted to the Court that these benefits amounted to an income of about $30,000 to $35,000 per year which was wholly attributed by the wife. I reject that submission.
218.It was submitted that the wife provided cash, in the form of $105,000 compensation, shortly after the parties commenced cohabitation and that was a particularly effective asset to provide liquid funds to enable the farm to prosper.
219.In that respect I have treated it as a significant initial contribution. I needed to be careful not to count it twice. It was an asset which was of value to the parties as the properties came out of the drought. Similar things could be said about owing the property, owning a core of livestock, and having the machinery for the farm.
220.The wife was and remains a highly experienced farmer. In many ways the husband acknowledged that the wife’s contributions to the farm in a physical, emotional and financial sense were significant, at least in the earlier years of the relationship. I have given that evidence of the husband significant weight.
221.The husband gave evidence as to her qualifications, as did the wife. The wife is relatively young in comparison to the husband, but needs to update some of her qualifications. The wife gave evidence that she needs to spend about $5,000 to restore her qualifications. I have factored that amount into the other considerations
222.I listened carefully to the evidence of both parties and the criticisms of both parties as to the other. The husband did provide income from the farm and I am satisfied that he applied all of the available funds, whether that was by way of profits or through overdraft over the period of nine years. The wife asserted that at some stage he was not diligent in his work. I reject that assertion. I find that he worked hard in the family and on the farm throughout the period of cohabitation. I find that the wife also worked hard in terms of home-maker, mother and on the farm.
223.Other than the initial contributions I am satisfied that the parties have contributed equally since they commenced cohabitation in late 2009 and that they have each continued to do so up to separation and following separation.
224.The allegations of family violence and sexual abuse were raised by the wife in the context of a Kennon v Kennon[24] claim. Watts J in Gillard & Gillard and Anor [2016] FamCA 841 set out the principles which govern a claim of this nature:-
[24] (1997) FLC 92-757 (1997) 22 Fam LR 1.
Applicable Principles
189.I repeat the discussion of applicable principles in Minterly & Minterly (2013) FamCA 418 at [68] - [73]:
68.The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:
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, to 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.
69.In Spagnardi & Spagnardi [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated” saying:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
70.The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.
71.In Spagnardi, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say:
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.
72.The Full Court in Spagnardi also commented upon the reference to “exceptional cases” and “the relatively narrow band of cases”. The Full Court in Spagnardi adopted the trial judge’s comments that:
… the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
73.The Full Court in Spagnardi at [47] said:
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. 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 [sic] capacity to "contribute" as defined by section 79(4).
225.Counsel for the husband asserted that this was not a claim to which Kennon ought to apply.
226.The wife was permitted to adduce her evidence in support of her Kennon claim and consequently I allowed the husband’s evidence through his affidavit in reply and oral evidence.
227.In Noogle &Noogle [2017] FamCA 140 Austin J discussed the limits of the Kennon claim and said:-
36. In respect of the first issue, the restrictive limits of the Kennon guideline principle must be acknowledged. The majority stated (at 24), without dissent (at 66-67):
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, for the reasons which we indicated earlier, but its application is not limited to that…
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past…
However, in our view, s 79 should encompass the exceptional cases which we described above…
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 discernable impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass…conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
(original emphasis)
228.Counsel for the wife asserted that the ‘wife’s evidence in relation to the Kennon claim is detailed and evidences marital rape, abuse, threats controlling behaviour and intimidation throughout the period of the relationship’.[25]
[25] Ibid.
229.The wife adduced some limited psychological evidence. In Gillard & Gillard and Anor (supra) Watts J discussed the medical evidence of Dr EF which was:-
195.Dr EF provided therapy to Ms Q on four occasions in 2005 and on five occasions in 2012 and 2013. Ms Q Gillard gave a history to Dr EF similar to the history provided in her evidence before me about her recollections of serious difficulties caused by her father’s behaviour at home over the years that she was living in the household. The history she gave to Dr EF was, Dr EF said, consistent with the history given by the wife and involved cruel and inconsiderate behaviour of her father over the years including irrational and abnormal behaviour. Dr EF formed the view that Ms Q had been adversely affected by her father throughout her childhood and early adult life causing her depression and anxiety and affecting her education at school (and at university). Dr EF was of the view that Ms Q is likely to remain affected for many years and will need further counselling and psychological therapy/supportive psychotherapy. I infer the adverse impact that the husband’s behaviour had on Ms Q throughout her childhood and early adult life, made the wife’s role as Ms Q’s parent significantly more arduous.
230.His Honour went on to say:-
212.The husband submits that only incidents of violence perpetrated by the husband against the wife are relevant to the wife’s Kennon claim and that other incidents of alleged family violence against the children are not relevant. I do not accept that submission. The wife’s claim that contributions were made significantly more arduous by the husband’s systemic conduct include contributions that she made in the role of parent. Dr EF’s evidence would indicate that the children were all affected by the husband’s conduct that was directed at each of them. I am prepared to infer that the effect of the husband’s conduct on the children made the wife’s contributions as the primary carer of those children significantly more arduous.
231.The Full Court in Britt & Britt [2017] FamCAFC 27 considered whether the evidence was capable of establishing a claim that the appellants contributions were made more onerous by the conduct of the respondent and said:-
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.
232.I am concerned as to the reliability of the wife’s evidence in this respect. The husband gave clear and concise evidence in relation to those matters and evidence in respect of its impact upon him.
233.I am satisfied there may have been some issues of the parties yelling and screaming at each other, including the evidence that the wife had an explosive temper and from time to time lost control of herself. This came from evidence from their former older friends, the school principal and police.
234.I do not accept that there was violence towards the wife’s children of her previous relationship.
235.Accordingly, I make no finding that the serious assaults asserted by the wife and the allegations of sexual abuse asserted by her occurred. This does not mean they did not occur, but when balancing the evidence together I am not satisfied that those facts have been established.
236.In coming to this conclusion, I have carefully weighed the evidence of the wife particularly, in the light of her diary. Some of the events are recorded, some of them are not. The events are at times recorded in ways where she expresses unhappiness with the relationship rather than assertions of non-consensual behaviour or violence by the husband.
237.In determining the overall contributions I have had regard to the circumstances that the wife has been the primary carer for the parties’ child since separation and the grandchild, for whom they cared.
238.The husband has been paying spousal maintenance since 2017, although this will cease soon after these orders come into effect.
239.Given all of the facts and circumstances about contributions, I am satisfied that the value of the overall contributions, including initial contributions, contributions during the relationship and contributions post-separation, are as to 85 per cent by the husband and 15 per cent by the wife.
THE OTHER FACTORS
240.The wife is aged 47 and she is and will remain the primary carer of the parties’ child. The husband will have significant and substantial time with that child, including over school holiday periods.
241.The wife has some health difficulties, particularly with regard to her shoulder and an allegation that she suffers from post-traumatic stress disorder. These will have some impact upon her earning capacity, although it did not have a significant impact on her working during the course of the relationship.
242.She is trained as a farmer and undertakes that work at competent levels. She retains livestock and I am satisfied that she has the capacity to earn a reasonable income in the farming sector.
243.The husband is aged 64 and is otherwise in good health. He intends to keep the properties as his means of living and lifestyle. The farming business will be burdened with a significantly greater mortgage given that he will need to pay out the wife.
244.It was submitted that the husband’s earning capacity was greater than he states in his financial statement. I accept that submission to a moderate degree, not that he is not paying tax but there are some expenses, such as depreciation, which the husband has been applying to general living expenses. Eventually that machinery and those items being depreciated will need to be replaced and that cost will need to be met.
245.There is some evidence that the farm is likely to become more productive into the future. The husband has positive views as to increasing income and has made enquiries about borrowing monies.[26]
[26] Exhibit E11 (tax returns), Exhibit E10 (cash flow statement) and Exhibit E8 (farm business plan for 2017 to 2019).
246.The wife’s ability to earn income will, be to some degree, restricted by her obligation to care for the parties’ child.
247.I accept that the wife’s financial circumstances will be improved by the property settlement. The husband’s financial circumstances will be detrimentally affected by the property settlement.
248.The husband is likely to continue working for the medium term.
249.The wife will continue her role as the primary carer of the parties’ young child. However, the child will spend regular time with the father during school term each alternate weekend from the conclusion of school Thursday until the conclusion of school the following Tuesday and for one half of the summer school holiday period in accordance with the Consent Orders made in August 2018 .
250.Neither party has re-partnered, nor do they have an obligation to support others, apart from the child.
251.The wife will be paid a Family Benefit and will receive some level of child support. The child support is likely to be very modest, given the nature of the husband’s work.
252.The standard of living of both parties has diminished following their relationship breakdown, and will continue to do so.
253.Many of the factors pursuant to s 75(2) of the Act were not addressed and I have not considered factors that the parties did not consider relevant.
254.In his submissions, counsel for the wife asserted that although there is not an application for ongoing spousal maintenance before the Court the current order for spousal maintenance should continue until the matter is determined. Further, that counsel asserted the Court should take into account the fact that the husband will not be paying the wife any meaningful child support or spousal maintenance following settlement under this factor. I had regard to that submission, except that the husband will have significant care for the child and in addition will likely pay some child support, but it will be at a modest rate given his income.
255.Having regard to all of the circumstances, I have determined that there ought to be an adjustment in favour of the wife of seven per cent by way of the other factors.
256.As I indicated earlier, I am satisfied that there ought to be a property adjustment between these parties.
CONSIDERATIONS OF JUST AND EQUITABLE
257.If the property is divided as to 22 per cent to the wife and 78 per cent to the husband the outcome will be that the husband and wife respectively retain the following property, with a payment by the husband to the wife of $664,912.
The husband’s assets and liabilities
Z Property - agreed
$2,840,000
L Property - agreed
$1,800,000
Livestock valuation at Z Property- agreed
$334,568
Livestock valuation at L Property - agreed
$116,288
Livestock valuation at L Property - agreed
$110,500
Water rights - agreed
$250,000
Business trading as Horrigan Company
$0
Motor vehicle 2 - agreed
$0
EE Bank savings - agreed
$135
Plant and equipment - agreed
$214,490
Household contents (H) - agreed
0
Add-back agreed legal costs
$31,997
FF superannuation of husband- agreed
$1,460
Borrowings (ANZ & GG Bank) - agreed
($2,120,000)
Car Finance - agreed
($37,247)
Bank accounts (H) - agreed
($42,305)
Amount to be paid to the wife
($664,912)
Total
$2,834,974.00
The wife’s assets and liabilities
J Property - agreed
$145,000
Livestock - agreed
$21,660
Plant and equipment - agreed
$5,690
N Bank savings - agreed
$2,663
N Bank shares - agreed
$1,838
Motor vehicle 1 - agreed
$6,500
Household contents - agreed
$0
Add-back agreed legal costs
$4,338
Superannuation – plan 1 FF Super - agree
$119
Payment to the wife
$664,912
Secure funding for her home - agreed
($45,000)
DD Firm - agreed
($7,716)
Outstanding rates and taxes on wife’s home - agreed
($396)
Total
$799,608.00
258.I am satisfied that in all of the circumstances such adjustment is just and equitable
Other aspects
259.The husband gave evidence that the farming industry in Tasmania, and particularly as it related to him, had suffered a terrible drought in 2005, 2006 and 2007. This had a significant impact upon him and he has been trying to recover from it.
260.The husband has limited borrowing capacity but can, over the years, borrow to pay out the wife. Given that the husband is a farmer and has been a farmer for many years and seeks to retain his properties, I am satisfied that his practical proposal for payment of the wife over fifteen months is, in all of the circumstances, just and equitable. Given the relative contributions, to force the husband to sell the properties if there is a facility available to him to otherwise pay out the wife would not be just and equitable.
261.The wife seeks an order for access to the Z Property to remove property and it is an open ended order. I raised this with the parties during the hearing. I am making such an order but will give leave to the parties to apply in the event of any dispute over particular items of personal property.
262.In terms of the application for continuation of the spousal maintenance order, I intend to provide that it continues until the date of payment of the first instalment. If the husband does not make that payment then interest will accrue at a significant rate as prescribed under the Family Law Rules 2004 (Cth) and that would more than compensate for any maintenance otherwise sought by the wife. The wife otherwise seeks and I agree that the maintenance order should be dismissed.
263.The wife seeks occupation of the present home until the first payment. I will make the order allowing some reasonable time for her and the child to vacate.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 November 2018.
Associate:
Date: 16 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Consent
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