Kilshaw and Drummond

[2019] FamCA 690

FAMILY COURT OF AUSTRALIA

KILSHAW & DRUMMOND [2019] FamCA 690

FAMILY LAW – PROPERTY – De facto relationship – Where the applicant seeks a declaration for sole right of title and interest in the former family home – Where the applicant is the sole registered proprietor of the former family home – Where there are six subject children aged between four and 16 years of age – Where the respondent  makes an undefined claim of payment to himself, now or in the future, to reflect his contributions financially and to the welfare of the family – Where the respondent is currently incarcerated – Where the respondent is charged with serious criminal offences relating to assaults on two of his female children – Where there is a long history of the respondent being the perpetrator of family violence against the applicant and the children – Where the parenting proceedings are yet to be determined – Where the applicant’s contributions both financially and to the welfare of the family are more substantial – Where the impact of violence is considered in accordance with Kennon v Kennon (1997) FLC 92-757 – Where the applicant’s contributions are determined as being made more arduous by the conduct of the respondent – Where adjustment factors pursuant to ss 90SF(2) of the Family Law Act 1975 (Cth) favour the applicant – Ordered the applicant is declared to have the sole legal and equitable interest in the former family home – Ordered the respondent’s application for the adjustment of interest in property held by the applicant is dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79(4), 90SF(2), 90SF(3), 90SM(4)

Bevan & Bevan [2013] FamCAFC 116;
Britt & Britt [2015] FCCA 685
Kennon v Kennon (1997) FLC 92-757
Kilshaw & Drummond [2018] FamCA 792
Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Ms Kilshaw

RESPONDENT: Mr Drummond

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2107 of 2018

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Newcastle

PLACE HEARD:	Newcastle
JUDGMENT OF:	Cleary J

HEARING DATE: 12 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilkinson

SOLICITOR FOR THE APPLICANT: McAllister Legal Services

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Self-Represented (via audio
visual link from correctional
facility)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke, Solicitor Advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. That the applicant, Ms Kilshaw, is declared to have the sole legal and equitable interest in the property at B Street, C Town, New South Wales.

2. That the application of the respondent for adjustment of interest in the property real and personal held by the applicant is dismissed.

3. That each party retain all assets and debts in the sole name of that party to the exclusion and indemnity of the other party.          

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 Kilshaw & Drummond 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 NEWCASTLE

FILE NUMBER: NCC 2107 of 2018

Ms Kilshaw

Applicant

And

Mr Drummond

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications in respect of adjustments of interests in property, principally the former family home in C Town, New South Wales (“NSW”).

2. The parties commenced their de facto relationship in 1998 and separated in November 2016.

3. The parties were together for a total of eighteen years. Those years were characterised by violence, criminal misconduct and emotional dysfunction.

4. There are eight children of the relationship, two of whom have reached adulthood. The six younger children have lived with the mother since separation of the parties.

5. Parenting proceedings are still on foot awaiting the outcome of criminal charges against the father. He is incarcerated on remand.

6. The parenting and property applications have been bifurcated.

The Parties

The Applicant

1. The applicant, Ms Kilshaw, is 38 years old. She lives in the former family home in C Town. Her household consists of herself, the six younger children, Ms N (the parties’ young adult daughter aged 20 years) and her two children.

2. The applicant is not in the paid workforce. She has been fully engaged by child bearing and is presently engaged full time in the care and supervision of her children and grandchildren. She also receives a carers allowance in relation to Ms N.

The Respondent

1. The respondent, Mr Drummond, is 49 years old. He is currently in a Correctional Centre with bail refused, pending the outcome of his current criminal proceedings.

2. The respondent has been incarcerated since he was arrested. He is charged with serious criminal offences in relation to two of his daughters, namely aggravated indecent assaults, aggravated sexual intercourse with a person of 14 years of age, and assault occasioning actual bodily harm.[1]

   [1]Kilshaw & Drummond [2018] FamCA 792, para 7 and Exhibit 2

3. The respondent had been a tradesman when the parties met in 1998. That ended within two years. In about 2007 the respondent started a business, with support from Centrelink, which was to use the words of the respondent, “sporadic and short lived”.

4. Otherwise, the respondent has not been in paid employment.

The Applications

1. The applicant sought a declaration that she be declared to have the sole right of title and interest in the former family home at B Street, C Town.

2. The applicant is the sole registered proprietor of the former family home.

3. The respondent made an undefined claim for a payment to himself, now or at a future time, to reflect his contribution both financially and to the welfare of the family.

The Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant - Ms Kilshaw

   (a)Initiating Application filed 16/07/2018;

   (b)Affidavit of Ms Kilshaw filed 16/07/2018;

   (c)Affidavit of Ms Kilshaw filed 11/04/2019;

   (d)Affidavit of Ms Kilshaw filed 7/16/2019;

   (e)Affidavit of Mr Kilshaw, the applicant’s father, filed 16/07/2018;

   (f)Financial Statement filed 16/07/2018;

   The Respondent - Mr Drummond

   (g)Response filed 28/03/2019;

   (h)Affidavit of Mr Drummond filed 28/03/2019; and

   (i)Financial Statement filed 7/05/2019.

The Trial

1. On 1 April 2019, orders were made setting the property proceedings between the parties down for final hearing for a period of one day in June 2019.

2. A direction was made that the father file and serve a Financial Statement and Affidavit by a certain date in May 2019. A failure on the part of the father to file the requested documents would result in the matter proceeding undefended.

3. On 7 May 2019, the father filed a Financial Statement which contained some additional handwritten information. That document was admitted into evidence.

4. On 12 June 2019, the matter proceeded to trial and was concluded within the day.

5. The applicant was legally represented and had briefed counsel.

6. The respondent represented himself and participated by audio-visual link from gaol.

7. The solicitor advocate for the Independent Children’s Lawyer (“ICL”) attended.

8. Judgment was reserved.

Brief history of events prior to separation

1. In 1997, aged 15, the applicant was the victim of a sexual assault in Sydney. She began receiving treatment for depression and anxiety.

2. In 1998, the applicant left her parents’ home, fearing her attackers would find her. She then met the respondent. He was aged 29 and she was 17 years of age. They formed a friendship and quickly became a couple, despite the concerns of her parents.[2] The parties then moved to Suburb M, NSW.[3] Later in that year the applicant fell pregnant with the respondent’s child.

   [2] Affidavit of Mr Kilshaw filed 16/07/2018, para 3

   [3] Affidavit of the mother filed 16/7/2018 para 3

3. The unchallenged evidence of the applicant is that the respondent broke her arm while bashing her, kicked her in the stomach and told her to get rid of their unborn baby.[4]

   [4] Affidavit of the mother filed 16/7/2018 para 3

4. There was unchallenged evidence from the applicant’s father that in about November/December 1998 he and the applicant’s mother received a call from the applicant asking him to come to Suburb M, informing him that she had been hurt and required medical attention.

5. On the arrival of her parents the applicant informed her mother that she was pregnant, and on further questioning by her mother they were then told that Mr Drummond had come home drunk and assaulted her, kicking her in the stomach and twisting her arm.

6. The applicant’s father took her to a doctor, who confirmed that her arm was broken, but the baby was fine. Her father tried unsuccessfully to convince the applicant to come home. The applicant’s father states that following this incident, the maternal family lost contact with the applicant until February 1999.[5]

   [5] Affidavit of Mr Kilshaw filed 16/07/2018 paras 5-6

7. In January 1999, the parties left their rented premises in Suburb M. They were unable to pay the rent. They lived in a car for a short time before moving in with the respondent’s father in Town L on the K Region of NSW. The applicant was assaulted, resulting in her spending three days in bed. Her evidence is that she was threatened by the respondent’s father that third parties, a bikie gang which the respondent’s father was involved with, would retaliate if she reported the assault to police.[6]

   [6] Affidavit of the mother filed 16/07/2018 para 4

8. In May 1999, the parties moved into a cottage in Town P, another township on the K Region.

9. Three months later and six weeks premature, the parties’ first child, Ms N was born.

10. On the night of Ms N’s birth, the respondent spent the parties’ money on gambling and drinking, leaving nothing for food, rent or the baby. The applicant’s parents came to see her the next day. They came to her assistance, providing money for rent and food.[7]

    [7] Affidavit of the mother filed 16/07/2018 paras 5-6

11. After Ms N was born, the father, the paternal family and friends would arrive at the house to visit, drink and sleep over. The applicant eventually refused to allow the paternal grandfather, paternal uncle and friends to visit. This led to continued threats and abuse from the respondent towards the applicant.[8]

    [8] Affidavit of the mother filed 16/07/2018 para 7

12. When the maternal grandparents came to visit the applicant and Ms N, the respondent would not let them into the house. They would have to sit in the driveway and wait for the applicant to go out to them as the respondent would not allow then inside the house, despite her parents assisting her to pay rent.[9] The applicant states that during this time she was anorexic and was not eating because the respondent was in the habit of saying that she “looked like a pig”.

    [9] Affidavit of the mother filed 16/07/2018, para 9

13. On one Saturday night, the applicant’s father arrived and asked the applicant “if [the respondent] was bashing [her]”, as she was crying and he had received a telephone call from a neighbour. The applicant’s father said to the respondent, “bash me not my daughter”. The applicant’s father dragged the respondent out into the backyard whilst hitting him.[10]

    [10] Affidavit of the mother filed 16/07/2018, para 9

14. The applicant reflected that “things quietened down” after that event and she became pregnant with their second child.

Applicant receives a compensation payment

1. In 2000, the applicant received $45,000 through Victim’s Compensation as compensation for the sexual assault of her in 1997.

2. The respondent urged her to buy an investment with the money, but the applicant’s father took her to a building society to apply for a home loan.

3. The applicant bought the former family home at C Town with the assistance of her father, who guaranteed the loan of $100,000. The parties moved into the former family home. The applicant paid all bills associated with the house.[11]

   [11] Affidavit of the mother filed 16/07/2018, para 11

4. In 2001, 2002, 2007, 2009, 2010, 2013 and 2015 seven more children were born. The applicant also experienced four miscarriages intermittently.

5. The applicant was not permitted by the respondent to take the children to the doctor.[12]

   [12] Affidavit of the mother filed 16/07/2018, para 18

6. By 2012, the applicant was relying on charity outlets to get food or money to live. The respondent would not give the applicant any of what he referred to as ‘his money’ and blocked the maternal family from coming to visit.[13]

   [13] Affidavit of the mother filed 16/07/2018, para 19

7. In 2013, the police took out an Apprehended Domestic Violence Order (“ADVO”) for the protection of Ms N.[14]

   [14] Affidavit of the mother filed 16/07/2018, para 21

8. From 2012 to 2015 there had been several good behaviour bonds and Apprehended Domestic Violence Orders (“the ADVOs”) issued to protect of the applicant and the children from the respondent.[15] The notes from the counselling service for the children[16] use the phrase “the child has grown up in a family of unspeakable violence”. These notes make grim reading.

   [15] Affidavit of the mother filed 16/07/2018, para 22

   [16] Exhibit 4

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[17]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) for married spouses, or the same provisions applicable to de facto relationships in ss 90SM(4) and 90SF(2) of the Family Law Act 1975 (Cth) (“the Act”) in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [17] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

1. Identify the assets and liabilities of the parties

1. The parties’ assets and liabilities are as follows:[18]

   [18] Exhibit 1, pages 4 and 5 noting error in calculations

O’ship		Description	Wife’s value
Assets
1	W	Property at B Street, C Town	$270,000
2	Household Contents	$1,000
3	H	Motorcycle	$3,500
4	H	Tools and hobbies	$500
5	H	Bank account	$2,000
Subtotal		$277,000
Liabilities
1	W	Mortgage	$65,000
2	W	Credit Cards	$11,000
3	H	Centrelink debt	$1,500
Subtotal		$77,500
Total		$199,500

2. Would it be just and equitable to make any adjustment to interests in property?

1. In considering the issue of whether to make any adjustment at all, contributions and possible adjustments must be considered.

2. The questions for the determination of the issue can be categorised and responded to as follows:

Was there a contribution, financial and/or non-financial, to family welfare by the respondent to the acquisition, conservation or improvement of any of the parties’ assets?

1. There probably were some contributions by the respondent, both modest financial contributions and to care of the children.

2. The primary asset was acquired by the applicant and she has been largely responsible for meeting the payments on the mortgage secured on the property, as well as utility bills.

If there was a contribution by the respondent, was it reduced or neutralised by a Kennon claim by the applicant in respect of family violence?

1. The respondent was violent towards the applicant. He broke her arm during her first pregnancy. The applicant attributes four miscarriages suffered by her to violence inflicted on her by the respondent.

2. The respondent, when angry, threw food away causing the applicant to rely on her parents and on charitable organisations to assist her to feed the children.

3. The oldest child left school at about 13 years of age to work to assist the family. The respondent used her income to buy alcohol and also a model plane for himself.

4. The respondent is alleged to have repeatedly sexually assaulted that child and a younger one.

5. Several ADVOs and good behaviour bonds were issued for the protection of the applicant and the children over a period of years from 2012 to 2015.

6. When the applicant separated from the respondent she did so by fleeing the former family home with the children and moving in with the oldest child, who lived in F Town.

7. The respondent remained in the former family home with the parties’ eldest son, the eldest son’s girlfriend and their child.

8. The applicant came back to the former family home every two to three weeks to pay bills and take the children to any medical appointments they had.

9. The applicant paid for the mortgage and all utility bills for the former family home for the first year of separation. After legal advice, she then ceased making those payments.

10. The respondent made a few mortgage payments but then stopped. Some utility bills were paid.

11. The respondent strongly resisted the applicant returning to the home.

12. When the mother did attempt to re-occupy the property on 3 November 2017, police were called. The respondent was present while the younger children were assaulted by their older brother, his girlfriend and the girlfriend’s father. The oldest child, Ms N, was taken to hospital, and her younger brother, X, then aged seven, was treated for cuts and abrasions at the scene.

13. The applicant and the children retreated from their planned return and moved to rented premises at Suburb J near F Town, NSW.

14. In July 2018, the mother and the children were victims of a home invasion, where three unknown men armed with a gun and a knife broke in and threatened the children. These men also threatened to return and kill them.

15. At that point, the mother decided to apply to this Court for exclusive occupation of the former family home.

16. On 21 September 2018, that application was heard. The respondent had recently been arrested and was in gaol.

17. Nevertheless, he was represented by counsel and strenuously resisted the application. His main submission was that he would need a home to return to and that the parties’ oldest son should be able to remain living in the home with his girlfriend and child.

18. The application of the mother was successful.[19]

    [19]Kilshaw & Drummond [2018] FamCA 792

19. The return of the applicant and the children to the home was delayed. The applicant continued to pay rent in Suburb J for a further two months.

20. The former family home had been extensively damaged and was in a filthy and unhygienic condition.[20] The clean-up and repairs to the former family home cost almost $50,000.[21]. The applicant made a successful claim on the home insurance for the majority of the cost of the cleaning and repair work.

    [20] Exhibit 3

    [21] Exhibit 5

21. On behalf of the applicant it was submitted that the contributions of the applicant to the care of the children and to the conservation of the assets were made more arduous by the conduct of the respondent.[22]

    [22]Kennon v Kennon (1997) FLC 92-757 at 84,294; see also Britt & Britt [2015] FCCA 685 at [73]

22. Taking into account the matters set out above, I accept that submission. The applicant was injured physically, overburdened financially and stretched emotionally by the conduct of the respondent.

23. Included in that burden is the support the applicant has been called on to provide to the children of the parties as a result of cruel treatment by the respondent which may or may not in time be confirmed as criminal conduct.

Do the factors pursuant to Section 90SF(2) of the Act favour one party over the other such that an adjustment of interest should be made?

1. The legislative factors identified below overwhelmingly favour the applicant.

Capacity for employment (s 90SF(3)(b) of the Act)

1. The parties’ relationship started when the applicant was school age. She has no formal qualifications or a trade. Even if she were able to do it, the mother would find it difficult to obtain paid employment without further education or training.

Care of children of the relationship (s 90SF(3)(d) of the Act)

1. The applicant has the care of six subject children aged at trial between 16 and four years, some of whom have been quite severely traumatised.

2. The eldest of the subject children, Z aged 16 years at trial, had difficulty attending school because she feared the respondent would come to her school and take her away. W, aged nine years at trial, has alleged that her father forced her to shower and bath with him. She has panic attacks.

3. Y, aged six, suffers from sleep apnoea which is worse in winter.

Income (s 90SF(3)(b) of the Act)

1. The applicant receives a supporting parents benefit, and a carers’ pension for her eldest adult daughter.

2. The applicant has no spare funds and no capacity to increase the mortgage debt over the property.

Child Support (s 90SF(3)(q) of the Act)

1. The respondent does not contribute to the financial support of the children. He did express in his submissions his wish to see the children remain living in the former family home.

2. The respondent has not been in any form of employment or self-employment since at least 2011, when his business came to an end.

3. The respondent is presently in gaol. At the date of this trial, dates for his criminal trial had not been allocated.

4. The respondent is unlikely to be able to contribute to the maintenance of the children, even if assuming he was willing to do so, in the near to medium future.

Conclusion

1. Having considered the contributions of the parties, I conclude that the applicant in combination with her parents, made a more substantial contribution than the respondent both financially and to the welfare of the family.

2. Next, I have concluded that the contributions of the applicant were made more arduous by the conduct of the respondent. By his physical abuse of the applicant and the children, and by his vehement resistance to permitting the applicant to live in the former family home with the children after separation.

3. Finally, I conclude that the adjusting factors also favour the applicant.

4. On that basis, I consider that it would not be just and equitable to alter the interest of the parties in their assets and liabilities as they properly reflect the history of the relationship.

5. Orders are made accordingly.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 September 2019.

Associate:   

Date:  26 September 2019