Kempton and Kempton

[2013] FCCA 1360

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEMPTON & KEMPTON [2013] FCCA 1360

Catchwords:
FAMILY LAW – Alteration of property interests – significant credit and evidentiary issues – assessment of contribution – “Kennon” claim – future needs.

Legislation:
Family Law Act 1975, ss.75, 79

Cases cited:
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39
Kennon & Kennon [1997] FamCA 27

Applicant: MR KEMPTON

Respondent: MS KEMPTON

File Number: SYC 5850 of 2011

Judgment of: Judge Altobelli

Hearing dates: 31 May 2012, 3 September 2012 and 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Sydney

Delivered o 19 September 2013

REPRESENTATION

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: James Maspero, Solicitor

Solicitors for the Respondent: Michael Vassili Lawyers

ORDERS

1. Unless the parties are able to agree as to the value for present purposes of the property at Property T within seven (7) days of the date of these orders the following provisions shall apply.

2. The value of the property is to be determined by a licensed real estate valuer who is appointed by the parties within 14 days of these orders, or failing agreement who is nominated by the President of the Australian Institute of Valuers, or his or her nominee.

3. In order to establish the value of the property both parties are to do all things to facilitate the valuation process including allowing inspections of the property by the valuer at all reasonable times.

4. Within 90 days of the date of the valuation of the property established pursuant to these orders the Wife is to pay to the Husband or as he may direct in writing an amount equivalent to 25% of the said value of the property and in return the Husband is to transfer to the Wife all of his right, title and interest in and to the property.

5. If the Wife is unable to pay to the Husband the amount referred to above the following provisions apply:

   (a)Interest accrues on the said sum at the rate calculated in accordance with the Family Law Act, its Rules and Regulations, calculated to commence from 90 days of the date of valuation referred to above; and

   (b)The property is to be forthwith placed on the market for sale at the price determined by the valuation, by private treaty, by a real estate agent appointed by the parties or failing a joint appointment as nominated by the valuer.

6. In the event that the property is not sold by private treaty within three (3) months from the date it is listed pursuant to these orders, the Husband and the Wife do all acts and all things necessary, including the execution of all documents necessary for sale of the property by public auction and, in particular:

   (a)Place the property with an auctioneer (“the auctioneer”) to be agreed between the parties (and failing agreement to be appointed by the valuer who prepared the valuation) for sale at auction at the earliest possible date;

   (b)Execute all documents requested by the auctioneer for the sale of the property;

   (c)Request the auctioneer to recommend a reserve price to be placed upon the property for the purpose of the auction sale and accept such recommended reserve price;

   (d)Pay the auctioneer equally any sums requested for advertising expenses in relation to the auction;

   (e)Instruct a solicitor or conveyance (other than either of the respective solicitors for the parties) to be agreed between the parties or failing agreement to be nominated by the President for the time being of the Law Society of New South Wales to act in connection with the sale of the property;

   (f)Co-operate in every way with the auctioneer in relation to the sale of the property;

   (g)Attend the auction and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneer as to the acceptance of a price less than the reserve price; and

   (h)Execute a contract for sale and other documents necessary to complete the sale.

7. The Husband and Wife do all acts and things necessary to procure that upon the sale of the property, the proceeds of sale be paid in the following manner and priority:

   (a)In payment of agent’s commission and auction expenses (if any) due on sale;

   (b)In payment of the legal costs of sale;

   (c)In payment of 25% of the balance then remaining to the Husband together with any interest payable pursuant to these orders; and

   (d)In payment of the balance then remaining to the Wife.

8. From the date of these orders the joint tenancy of the parties in the property be and is hereby severed and they hold the same as tenants-in-common as to a three-quarter share to the Wife and one-quarter share to the Husband.

9. The Wife remains solely responsible for paying all outgoings in relation to the property.

10. That other than as provided in these orders, that as between the parties, the Wife and Husband shall each be declared to be the legal and beneficial owner of all other property and all other financial entitlements, (not hereinbefore provided for) in their respective names, possession or under his or her control or to which each party is presently, legally or beneficially entitled including motor vehicles, furniture and furnishings, monies in bank accounts, real estate, shares, superannuation entitlements, insurance policies, choses in action and credits or any entitlement to receipt of monies from third parties.

11. That each party do all such things including the signing of all documents to give effect to these orders.

12. That in the event that either party refuses, fails or neglects to do any act or thing or execute any document to give effect to these orders, an officer of the Federal Circuit Court of Australia at Sydney be appointed pursuant to s.106A of the Family Law Act 1975 to do any such act or thing or execute any document necessary to give effect to these orders.

13. That both parties be granted liberty to apply in respect of the implementation of these orders upon giving seven (7) days’ notice.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5850 of 2011

MR KEMPTON

Applicant

And

MS KEMPTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is one of the more unusual cases that I have heard. It is an application for alteration of property interest under s.79 of the Family Law Act, commonly known as a property settlement.  The parties and the allegations they made in the course of these proceedings were quite unusual.

2. The applicant is the husband.  He is sixty-six years old, lives in (omitted), a (omitted) Sydney suburb, and is unemployed.  The wife is the respondent.  She is sixty-six years old, lives in the former matrimonial home in Property T, a (omitted) Sydney suburb, and describes herself as a pensioner.  They have two children, both adults.  X was born (omitted) 1974 and his brother Y was born (omitted) 1978.  The husband and the wife married on (omitted) 1977.

3. The facts set out above represents almost the totality of the relevant agreed facts.  Whereas the husband asserts that they commenced cohabitation in 1974, the wife asserts the cohabitation started in 1977 when they married.  The husband says they separated in 2008, but the wife says they separated in 1997.  The husband says that the former matrimonial home was jointly purchased using joint savings and a mortgage which they both contributed to, whereas the wife says that it was jointly purchased using her savings, and a joint mortgage that she paid off alone.  The husband says that as a result of an accident he has not worked since 1987, but the wife says that as a result of an accident, he stopped worked in 1979.  The mortgage was paid off some time between 1997 and 2000.  The wife says that throughout the marriage she suffered mental, physical and verbal abuse from the husband which made her contribution in all respects exceedingly more arduous.  The husband disputes this.  The wife says that the children X and Y made very substantial financial contributions towards the home, particularly towards repaying the mortgage, but the husband disputes this.  The wife says that the husband tried to kill her several times, including by way of poisoning, but the husband disputes this.

4. There are thus substantial factual issues that need to be determined and credit findings need to be made.

Background 

1. Both parties are from a non-English-speaking background.  Both parties have struggled, consistently, to regulate their emotions during the hearing.  During the course of the cross-examination of each of the husband and the wife, adjournments were sought, and granted, so that their respective lawyers could satisfy themselves that their respective clients did have capacity to provide instructions to them.  In the husband’s case his capacity was established by way of a psychiatric report, the details of which will be discussed below.  In the wife’s case, her lawyers satisfied themselves of her capacity through direct interview.  There is no evidence before the court of the mental incapacity of either part, and that lessens the range of possible findings that can be made as regards their evidence.  As it turns out, and for reasons that will be discussed below, if the husband’s evidence cannot be explained by reference to mental incapacity, the only finding available to the court is that his evidence was materially dishonest or that his recollection was so impaired, for some unexplained reason, that very little if any of his evidence could be accepted.  The conclusion is the same, whether the husband’s evidence was dishonest, or rendered unreliable because of impaired memory. 

2. In the wife’s case her evidence is so undermined by her histrionics and is so exaggerated as to be quite unreliable unless corroborated by other means.  As it turns out, there is probably a kernel of truth in the wife’s evidence and her version is slightly more acceptable than that of the husband, but only just. 

3. The court should, quite properly, be very reluctant to attribute mala fides to any witness.  Whilst it is not possible to make a finding about this, the court senses that the husband probably suffers from a severe memory impairment, or undiagnosed mental illness, which is probably attributable to drug or alcohol abuse.  As for the wife, it would seem, on all the evidence, that her personality predisposed her to emotional disregulation even before she met the husband and a very troubled marriage which probably did include violence and abuse (though not to the extent she alleged) resulted in her becoming the colourful but histrionic person that she is.  Thus, it is quite possible neither is being dishonest but they live in a world of their own that is shaped by who they were before the marriage and who they became both as a result of the marriage and independently, and what happened in their lives thereafter.

4. What is clear is that it was a troubled marriage from the outset, irrespective of how long it lasted.  Its breakdown, whenever it occurred, resulted in fractured relationships, not just between the husband and the wife, but as between the two children and the husband.  The children are aligned with their mother and against their father, albeit clearly reluctant to become overly involved.  The child X gave evidence in this case which was broadly corroborative of some of his mother’s allegations.

5. For all practical purposes there is only one asset, the former matrimonial home.  The wife says it is worth $280,000, but the husband says it is worth $300,000.  In an ideal world, there would have been evidence on which the court could make a finding.  It may well be that this home will have to be sold thus rendering academic the issue of expert evidence as to the value of the home.  The court accepts that on the facts of this case, with a very small pool of assets, and with each of the lawyers having their hands well and truly full in trying to manage difficult clients, the court will simply have to deal with the uncertainty.  There are other minor assets such as a motor vehicle and a personal loan, but the court intends to put these aside given their minimal value compared to the value of the home.  The home is unencumbered.

6. The husband’s proposal was that the home be sold and that he receive one half of the sale proceeds.  Moreover, he sought orders that he be appointed trustee for sale because of the high likelihood that the wife would remain intransigent insofar as acknowledging, and let alone paying to him, any share to which he was entitled.  By closing submissions his counsel contended that he should receive fifty per cent, even in the circumstances of the bizarre factual uncertainty prevailing in this case.

7. The wife’s proposal was that she receive one hundred per cent of the home with no payment to the husband.  Her case, from beginning to end, including in closing submissions, was that the totality of the wife’s contribution including as a result of the application of the Full Court’s decision in Kennon & Kennon [1997] FamCA 27 and s.75(2) factors favouring her, resulted in an outcome where the husband would receive nothing. It is interesting to note that the wife’s case is that the husband made no contribution whatsoever to the marriage, that his violence and abuse rendered her contribution significantly more arduous, and that she has future needs that are considerably greater than his. Moreover, the significant contributions made by the children is a contribution that should be attributed to her. It is important to recognise that, notwithstanding the histrionics and paranoia that at times pervaded the wife’s case against husband, she did not assert that this was a non-disclosure case and that he may have some funds or assets available to him not disclosed before the court.

8. The husband relied on a number of affidavits.  He was cross-examined.  The wife relied on a number of affidavits.  She was cross-examined.  The child X, 38 years old, also gave evidence and was cross-examined.  A considerable volume of documents had been subpoenaed and tendered in evidence, together with other documents to which reference will be made, if relevant.

Applicable law 

1. The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.

2. The Full Court states that there are four inter-related steps:

   a)Identify and value the property, liabilities and financial resources of the parties; and

   b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

   c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

3. In Kennon v Kennon [1997] FamCA 27 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 discernible 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).

Credit findings

1. The court’s findings in relation to the credit of both the husband and the wife have been foreshadowed in the reasons above.  It is important to record some of the findings and observations of the court that contribute to the overall finding.  Whilst it is true that both the husband and wife in cross-examination were frequently unresponsive and uncooperative, there are still matters of degree and context that need to be understood.  The wife’s colourful histrionics in cross-examination made for entertaining viewing, but made the cross-examining counsel’s job an exceedingly difficult one.  The court doubts that counsel will forget this case quickly.  But there was nothing malicious in the wife’s lack of responsiveness and failure to cooperate with counsel.  The court formed the impression that the wife’s performance in cross-examination was entirely consistent with her character and personality.  She spoke emphatically and enthusiastically about her perception of reality.  Her evidence can be seen as an exaggerated version of the truth, sometimes grossly so, but not evidence articulated with an intention to deceive, or even of reckless indifference about this. 

2. By contrast, the husband’s unresponsiveness and lack of cooperation in cross-examination created an entirely different impression.  His inability to recall comparatively recent facts, or facts so significant as to deny the possibility of forgetting (eg number of children fathered) created an entirely different impression of his evidence.  The cross-examination of the father about his criminal antecedents, the number of his extramarital affairs and the number of children he fathered outside of marriage was bizarre.  What he told the wife, the court and his own treating psychiatrist just on the issue of the number of children he fathered is all inconsistent at times.  His evidence is just so unreliable, and so inconsistent with more reliable and independent records (such as documents produced from the registry of births, deaths and marriages) as to lead the court to conclude that in the absence of independent corroboration, his evidence cannot be believed.  As indicated above, the conclusion in relation to the wife’s evidence is that it is exaggerated, sometimes grossly exaggerated, but generally there is a kernel of truth to it.

3. As will be seen below, the application of general credit findings must yield to specific findings about facts.  As will be seen, despite the adverse findings about the husband’s credit, his evidence is actually preferred to that of the wife in some respects.

The date of cohabitation 

1. The court finds that the date of cohabitation is closer to that asserted by the husband (1974) than that asserted by the wife (1977).  The court finds that it is more likely than not that cohabitation commenced at or shortly before their older child X was born in (omitted) 1974.  The wife described herself as a deeply religious and traditional person and it makes it highly improbable that she and the husband were not in a close relationship, and probably a husband and wife-type relationship, from the time X was born.  This is consistent with the occasional reference to the husband in the hospital records at the time.  Moreover, it is consistent with the evolution of the wife’s evidence in cross-examination when she started to concede that between 1974 and 1977 they were boyfriend and girlfriend.  The wife’s contention that cohabitation did not commence until 1977 is a genuinely-held reconstruction of events, in her mind, but it is highly unlikely that it is true.  The court finds that the date of cohabitation to be 1974.

Purchase of the former matrimonial home 

1. It is an agreed fact that the property was purchased for about $29,000 using a mortgage during the year of their marriage, 1977.  It is agreed that there was a deposit of $5000.  The husband and the wife cannot agree where the deposit came from and which financial institution provided the balance.  Nothing turns on the latter.  The husband asserts that the $5000 deposit came from joint savings, the wife asserts it was her savings.  The wife asserts that, in reality, the home was hers, and always intended to be hers, and that the only reason why the husband’s name was added to the title was because she could not obtain the mortgage on her own.

2. The wife’s case is plainly implausible.  They had married that year. Cohabitation commenced in 1974. To suggest that the family home would go in her name only, not his, or that his involvement was a matter of convenience, is unlikely.  They went on to have another child in 1978.  At the time of purchase of the home the only person working full time was the husband.  As for the assertion that it was the wife’s savings that represented the deposit for $5000, as opposed to joint savings, again that is highly unlikely, even if it were to be found that the money came from an account in her name only.  Both the husband and the wife had been working since 1972 and both thus had the capacity to save money.  The court finds they had been cohabiting from 1974 and that it is, therefore, likely, given the wife’s own description of herself, that she had some time off work when the child was born and thus suffered some interruption to her working life.  It is more likely than not that the $5000 represented the efforts of the husband and the wife jointly, at least between 1974 and 1977.  One must, in any event, wonder whether there would be any significant impact on the assessment of contribution in the wife’s favour even if the court were to find that the deposit was saved by her.  The court concludes that it would have made no material difference anyway.

3. What is a clear but important fact that at least on the wife’s case may have been overlooked, is that on the evidence of both the husband and the wife by 1979 both of them had stopped working as a result of injuries and both were in receipt of pensions or work injury-related benefits.  From about 1979, therefore, the only income available to both the husband and the wife were these benefits.

4. The husband says that the mortgage on the home was paid off in 1997.  The wife says that it was paid off in 2000.  On the facts of this case, it probably does not matter whether it was 1997, or 2000.  Even if it is 1997, as the husband asserts, the fact is that from 1979 neither had been working, and both had been dependent on benefits of some sort.  There would have been a modest income available to the parties from 1979 onwards.  The court accepts that both children, X and Y, probably commenced working from age 18 which would have been in 1992 and 1996 respectively.  The wife asserts, Y confirms, and the court accepts that both boys were making financial contributions in this period which the court infers must have been necessary in view of the limited income coming into the house.  There is substance, therefore, to the wife’s assertion about the boys’ financial contribution to the mortgage.  The husband’s denial of this lacks plausibility.  However, the wife’s assertion that X contributed about $21,500 and Y contributed $22,800 is plainly illogical.  This is so because they only borrowed $24,000 in 1977 so that by 1992 when X started working, and 1996 when Y started working, it is inevitable that the balance would have been reduced.  Moreover, even accepting the wife’s contention that the mortgage was paid out in 2000, it is exceedingly unlikely that both boys made the contributions that she asserts from the time they started working, to the time she says the mortgage was paid out.

5. Thus, the court finds the mortgage was probably paid out in 2000 and there was probably some assistance from X and Y though not in the amount asserted by the wife.  It is interesting it note that whilst the wife is able to allegedly quantify X’s contribution to the mortgage, in his affidavit X is not able to do so.

The date of separation 

1. The husband says that he left the matrimonial home in 2008, and went to live with his parents in (omitted) where he currently lives, or at least gives as his address.  The wife says they separated in 1997.  The evidence of neither the husband, nor the wife, is entirely reliable in this regard.

2. 2008 is the latest possible date of separation, but what is clear from the evidence, even the husband’s own evidence, is that he was not continuously in the house up until 2008.  Even on his own evidence the marriage was an exceedingly unhappy one, he frequently left the home, he had relationships with other women and, indeed, bore at least one child and probably two children to other women.

3. The wife’s contention of a separation in 1997 is unlikely to be correct.  Even the wife acknowledged that the husband lived in the home after 1997.  In 2004 she guaranteed his personal loan, a fact quite inconsistent with the separation she alleges.  The son X could have corroborated the wife’s evidence in this regard, but does not do so.  Indeed, in cross-examination X acknowledges that separation could have been as late as 2008.  The Centrelink documents in evidence tend to indicate that the wife represented to them that they separated in 2002.  Various COPS entries produced by the New South Wales Police also contain representations by her that they had separated in 2002.  The documents produced by the police in relation to a number of AVOs obtained by the wife against the husband suggest that in 2001 he was still living at home.  A note made by her doctor on 22 September 2003 refers to problems she was having with her husband.  A record made at (omitted) Hospital on 16 October 2003 is consistent with this.  It is more likely than not, therefore, that the date of separation was in 2002, consistent with representations the wife made both to Centrelink and New South Wales Police, and not inconsistent with the medical records referred to above.

4. That does not mean that the lives of the husband and the wife did not intersect after that date.  Indeed, as will be seen in the context of the discussion of the violence and abuse allegations below, it seems the wife frequently let him back into the home albeit for short periods.

5. The significance of the finding that the date of separation was 2002 means that the present alteration of property interests under section 79 is being effected 11 years after the date of separation. The court does not accept any assertion by the husband that he made any financial or other contribution after the date of separation. The mortgage was already paid off but, the court accepts, there were numerous other expenses relating to the maintenance and preservation of the property that must have been borne exclusively by the wife, acknowledging of course that she had the benefit of occupation.

Assessment of contribution

1. The process of assessing contribution on the facts of this case needs to be undertaken firstly in the context of the period of cohabitation, and then in the period from the date of separation to the date of hearing.  Moreover, the wife’s Kennon claim needs to be assessed.

2. The wife’s claim to have made 100 per cent of the contribution between 1974 and 2002 is, to use the words of counsel for the husband, preposterous.  She has reconstructed this in her mind.  Up until the date of separation in 2002 the husband and the wife, using their limited means, and with some assistance from their children after they started working, contributed equally to the acquisition, conservation and improvement of their property, and to the welfare of their family.  There is no doubt that this was undertaken in the context of an unhappy, and probably dysfunctional relationship.  The court accepts, and will discuss below, the impact of the husband’s conduct during the marriage and his frequent absences from the home for philandering purposes.  The court categorically rejects the evidence of the child X about his father “never” contributing towards the mortgage or household expenses or necessities.  His is an unhappy relationship with his father, and his evidence was coloured by that unhappiness.

3. Up until the date of separation, therefore, contribution is assessed to be equal.

4. From the date of separation to the date of the hearing the wife has been solely responsible for the preservation and maintenance of the home, whilst having the benefit of occupation.  There is no evidence from the husband, however, that he incurred a cost of accommodating himself.  Indeed the strong inference from his own evidence is that he lived with his parents at a cost that reflected his own living expenses, rather than an accommodation component.

5. Whilst the court accepts that there was a clear benefit to the wife in remaining in occupation of the home, she also bore the brunt of all of its outgoings and its preservation over a long period of time and this results in an assessment of contribution of a further 5 per cent in her favour.

The Kennon claim

1. The wife’s Kennon claim is based on her allegation of sustained and serious violence and abuse over almost the entire period of the relationship.  The allegations are denied by the husband.  It is necessary to examine the wife’s allegations and the evidence in corroboration of the same.

2. In her first affidavit filed 19 December 2011 she refers in paragraph 9 to an allegation that the husband poisoned her in 2008, which resulted in an AVO against him in 2009.  She refers to him bringing into the home “black magic” which she found in the shower.  She makes certain allegations about the injuries that she suffered, particularly to her back, but the evidence she herself advances indicates that the back injury is attributable to a degenerative condition rather than an injury.  What is curiously absent from this affidavit is reference to family violence, other than the allegation about poisoning.

3. The affidavit filed on 14 May 2012 clearly attempts to remedy the deficiency identified above.  At paragraph 22 she deposes to the husband pushing her on her bed and putting his hands around her neck.  At paragraph 37 that he abused her and the children physically and emotionally.  At paragraph 38 that he hit her, pushed her, poked her on her glasses and spat on her.  At paragraph 39 the allegation is that he punched her in the face, and broke her nose, and that as a result she saw Dr T who said certain things to her.  In paragraph 44 the allegation is that he left dead birds in the garden, a matter that she subsequently attributed to some satanic act.  At paragraph 45 that he poisoned her dog.  In paragraph 46 she refers to the three poisoning attempts – in 2001 using acetone, in 2002 using Ratsak, and in 2003 using caustic soda.  In paragraph 48, and subsequently in cross-examination, she asserted that in 2000 whilst she was asleep in her bed, he came into her bedroom and held a gun to her head for three or four nights in a row.  At paragraph 50 she asserts that in 2001, whilst she was sleeping, he beat her with a hammer and damaged her lower back and left hip.  At paragraph 51 she asserts that in 2002 he beat her with a rock.  When she went to her doctor she was told that her kidneys had been damaged.  In paragraphs 52 to 57 she says that in 2003 he beat her with a cricket bat, punched her and that she went to see Dr A.  In paragraph 61 she refers to an incident when he grabbed her by her wrists and shook her.  In paragraph 65 she refers to three AVOs taken out between 2002 and 2008.

4. There are a number of annexures to this affidavit.  Curiously, the wife annexes quite a volume of medical certificates between the period 14 June 2001 and 20 October 2005 supposedly corroborative of her allegations about the injuries that she suffered as a result of the violence she deposes to.  What is apparent from even a cursory inspection of these documents is that none are in any way corroborative of the wife’s allegations and, indeed, almost all of them are consistent with the theme of degenerative changes that the wife was experiencing.

5. However, the AVO documentation annexed is corroborative of some of her allegations.  Thus, for example, one AVO filed in August 2008 refers to an attempt to poison in July 2008.  There is one in June 2001 which refers to an allegation by the wife of a knife being held in the kitchen.  Thus, the AVOs demonstrate a theme of the wife’s evidence in that there is a kernel of truth to what she says if viewed solely by reference to corroborative evidence, though the dates clearly do not match up.

6. In cross-examination, when challenged about the absence of corroborative material in the medical records produced by Dr A, she explained this was because she promised to him that he would have nothing to do with court proceedings.  That, of course, does not explain why he made no record.  When the wife was challenged about how her own radiological evidence was inconsistent with her assertions, her dogmatic response was that she knew about the experience she had suffered.

7. She was challenged about a kidnapping allegation first raised in oral evidence, not contained in any of her affidavits.  The allegation was that the husband had paid some men to kidnap her, but she foiled the attempt.  To use her words “it did not succeed ... I have a special gift from God Almighty”.

8. She was challenged as to why the records produced by (omitted) Hospital did not corroborate her assertions about multiple admissions for the injuries she suffered.  Her response was to say words to the effect:   “... they destroyed my records ... it’s only crap in there ... they bashed me up ... mutilated me ... they are corrupt criminals.”.

9. She was specifically challenged as to why (omitted) Hospital did not have any records of her admission for caustic soda poisoning,  an event she described in quite graphic detail in cross-examination.  She explained that “they destroyed those records too ... I took two pieces of my own pancreas to the hospital ...”.

10. The documents produced by (omitted) Hospital became exhibit H.  Interestingly there is some limited corroboration of the wife’s case in general terms about family violence, within these documents.  Thus, for example, on 16 October 2003 there is a note by Dr D that the wife “been bashed by husband”.  There is a note dated 28 June 1981 in relation to “alleged assault – face and head”.  There is note of an attendance on 11 March 1979 recording the wife’s concern that she might have VD and that the husband sleeps around and had VD 15 years ago.  There is a note of 5 August 2009 in which her assertion that “was poisoned by husband” is noted.  There is another curious note, 13 March 1978, in which the doctor notes “Ms Kempton's hysterical-type personality”.

11. The interesting thing about these notes is that whilst there is some limited corroboration of the wife’s general case, there is limited corroboration of the wife’s specific allegations.  Indeed, the wife frequently attended at (omitted) Hospital for multiple health-related issues.  She had lots of opportunities to report the matters that are so vividly described in her affidavits, but there is no record of the same.  Moreover, there is a medical report of 18 June 1981 that refers to a motor vehicle accident that she suffered on 4 January 1981.  It is curious that she does not refer to this in her evidence in the context of a case where she so vividly describes the injuries and the disabilities suffered as a result of her husband’s violence and abuse.  It would seem from this report that as at June 1981, in terms of physical disabilities, she had suffered a first degree prolapse, and that the motor vehicle accident had resulted in her sustaining trauma to the back of her head and to the neck resulting in pain.  It is interesting to note one doctor’s impression of the wife as “anxious and highly-strung lady with history of phobias all her life”.

12. The extensive records produced by Dr A reveal only one reference to family problems in a visit on 22 September 2003 in the context of records that span many years, and well over a hundred consultations with her doctor.  Now, out of all the opportunities she had to report the problems and issues she so graphically describes in her evidence to the court, Dr A makes no record of the same, except on 22 September 2003.  What is interesting from these records is a statutory declaration the wife made on 3 May 1994 in which she refers to the acupuncture treatment she received from Dr A “for lower back pain as a result of my falling from a chair on 3 February 1987”.  Again, she does not tell the court about this incident, but the injury she suffered is consistent with the medical records that she does produce, but quite inconsistent with her medical problems being attributable to any conduct by the husband.

13. The documents produced by New South Wales Police provide some limited corroboration of her allegations.  For example, on 15 August 2009 the COPS entry indicates that the police attended the former home in relation to an apparent breach of AVO matter and that upon arrival “police spoke to the victim who stated that the POI had been staying at the location and that he had put voodoo on her as he is part of a Satanic cult ... the victim is a devout (omitted).  The victim found a rose petal in her shower which she states was cursed and almost killed her.  It was stated that the POI had been staying at the location for over three months.  The victim allowed the POI to stay at the location because he apparently had nowhere else to go, despite the victim knowing he was not to be there.  After discovering the voodoo, the victim and POI had an argument and the victim asked the POI to leave, which he did.”  The police officer making the record then records his or her own observations follows:   “It appears the victim may suffer from some form of mental illness or has strong spiritual beliefs.”

14. What is singularly absent from the police records is any corroboration of the very many serious allegations that the wife makes about the husband assaulting her, for example.

15. The absence of corroborative evidence, as bizarre as it might be perceived, is not necessarily inconsistent with the allegations made by a witness, even one prone to histrionics, especially in the context of a case where the court has such serious doubts about the husband’s denials.  There seems a kernel of truth to the wife’s allegations of violence, although it is abundantly apparent that she has reconstructed many of these events and exaggerated them.  As previously indicated, the court doubts that this is malicious, but is more likely to be characterological.

16. The corroborating evidence of X is very important in this regard, bearing in mind that his evidence about this could not be shaken.  Notwithstanding this, the justifiable criticism of this evidence is that it is of a very generalised nature.  At paragraph 2 of this affidavit he says that his father “would constantly come home drunk and abusive and would become physically abusive…”.  He said that “Due to my father’s abusive behaviour towards my mother, my mother would suffer from constant black eyes and a bleeding nose.”  Curiously the mother does not give this evidence.

17. X says at paragraph 4 that he recollects “On occasions when I was with my father that he would meet up with other women without my mother knowing.”  This is consistent with the mother’s evidence.  At paragraph 6 he asserts that he observed that his mother “was always very scared during my father’s abusive periods, that if we did have any family gatherings at which he got drunk and abusive, he would continue this kind of behaviour at home and he would become very physically violent towards my mother.”  This is an interesting, and important paragraph because it is, potentially, the most accurate depiction of the violence that occurred during the relationship and, in particular, that it was periodical and fuelled by alcohol.

1. It is impossible to separate fact from fantasy in this case, but that does not preclude a finding that there is substance to the wife’s allegation of violence and abuse over a sustained period, witnessed by at least X, though not necessarily to the extent and on the dates, and in the manner, that the wife asserts.

2. To the extent that the wife asserts that the medical conditions that she presently suffers are attributable to the violence, she has not discharged the burden of proof on her.  All of the medical evidence before the court indicates that what medical condition she suffers seems to be attributable to degenerative changes, and not to violence perpetrated by the husband.

3. It is nonetheless hard to escape the conclusion that the wife’s contributions, financial and non-financial, were rendered significantly more arduous as a result of the husband’s behaviour.  Doing the best the court can, she had to carry on in her role notwithstanding the father’s violence, which was periodical and fuelled by alcohol, as well as put up with his infidelity and frequent absences from the home.  As regards his infidelity, even the father did not deny this in cross-examination.  In cross-examination, when given the opportunity to explain why she kept having him back in the home, despite the separation, and despite the violence and abuse she suffered, and even despite the violence that she asserts he perpetrated on the children (a matter that was corroborated, in part, in X’s evidence) her clear and consistent evidence was that she was committed to the marriage because of her religious beliefs.  She thought marriage was for life notwithstanding the behaviour of her husband.  The parties are still not divorced.

4. A finding in the wife’s favour based on the Kennon claim is made possible, mainly because of the corroborating evidence of the son X.  Indeed, but for X’s evidence, it is doubtful whether the wife’s evidence alone would have had the probative value to satisfy the court about her Kennon claim.  In all the circumstances an adjustment in her favour of 15 per cent is appropriate.

An adjustment under s.75(2)?

1. Implicit in the wife’s case is that there should be a further adjustment in her favour under s.75(2) that would ensure that she receive 100 per cent of the assets.  This would mean, in effect, an adjustment of 30 per cent in her favour.  Implicit in the husband’s claim is the submission that s.75(2) considerations balance each other out.

2. Both parties have health problems and the court suspects that some of these may well be psychological or psychiatric, and be undiagnosed.  In any event, what is clear is that the wife has significant degenerative conditions of a physical nature.  The report of Dr J, consulting forensic psychiatrist dated 3 October 2012 in relation to the husband suggests that psychiatric factors are improbable as being an explanation for his behaviour in court.  What is interesting about this report, and which clearly contributes to the adverse credit findings about the husband, is how what he told Dr J about his forensic history and personal habits at page 4 of the report are so clearly inconsistent both with his own evidence to the court, and to other independent records.

3. The fact is that neither party has worked since 1979, and neither party has the capacity for work.  The property pool to be divided between the parties is modest.  Be that as it may, the modest home is the only roof that the wife has over her head.  By contrast, there is nothing in the husband’s evidence to suggest that the provision of accommodation by his parents in (omitted) is anything but a long-term arrangement.  Whatever the true financial arrangement that he has with his parents (and the court doubts very much what he said about paying rent) it seems he can comfortably afford this on his limited income.

4. Both parties are eligible for government benefits.  Neither has any caring responsibilities for other children.  There are no issues about standard of living.  It has been a long marriage.

5. On balance, the court assesses the wife’s needs to be slightly greater than the husband on the basis that the home will have to be sold in order to fund a payment by the wife to the husband unless she can, somehow, raise the funds to pay him out.  One would have thought that if the wife was dependent entirely on her share of the sale proceeds of the property, it will be very difficult, indeed, for her to reaccommodate herself.  By contrast, the husband’s accommodation seems to be more secure.  However, the harsh reality is that both parties have 75(2) needs.  In those circumstances a 5 per cent adjustment in favour of the wife is appropriate.

Just and equitable 

1. Having regard to the assessment of contribution and future needs set out above, the wife would be entitled to an adjustment in her favour of 75 per cent of the value of the home, whatever it is.  The husband would be left with 25 per cent of its value, or of its sale proceeds.  Regrettably, on the facts of the case, this outcome is as just and equitable as it can be.  In reality the wife would be lucky to retain the home, but perhaps she might be able to obtain the assistance of her children in order to pay the husband out.  If not, the home will need to be sold.  Neither will have much to see them through for the rest of their life.  If the home is, in fact, worth $280,000, the wife will need to raise $70,000 to pay the husband out.  The orders the court makes will provide a mechanism for the value of the home to either be agreed, or independently established.  The husband will be entitled to a one-quarter share of the home, whatever its value.  The wife will be given three months to pay the husband his share, after the value of the house is established.  If she cannot pay the husband his one-quarter share within that time period, then the home will need to be sold and the husband will receive one-quarter of the net sale proceeds after deduction of the expenses of sale.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  19 September 2013