KK and KG - [2003] FMCAfam 609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KK & KG

[2003] FMCAfam 609

FAMILY LAW – Property settlement – husband in gaol and aware of proceedings but elects to take no part in them – serious domestic violence in marriage – domestic violence made wife’s contributions significantly more arduous than they ought to have been – reference to principles in Kennon (1997) FLC 92-757 – husband has no contact with children – impact of s.75(2) factors.

Family Law Act1975

Pastrikos (1980) FLC 90-897
Lee-Steere (1985) FLC 91‑626
Ferraro (1993) FLC 92-335
Davut & Raif (1994) FLC 503
Clauson (1995) FLC 92-595
Whitely (1996) FLC 92-684
Norbis (1986) FLC 91-712
McMahon (1995) FLC 92-606
W v W (1986) FamLR 538
Henderson (1987) FamLR 529
Russell (1999) FLC 92-877
JEL v DDF (2000) 28 FamLR 1
Phillips (2002) 29 FamLR 128
Figgins (2002) FLC 93-122
Kennon (1997) FLC 92-757
C v C (1998) FLC 92-824
JEL v DEF (2001) FLC 93-075

Waters v Jurek (1995) FLC 92-635

Applicant:

Respondent:

File No:

MLM 1686 of 2003

Delivered on:

27 November 2003

Delivered at:

Melbourne

Hearing Date:

27 November 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Cronin

Solicitors for the Applicant:

Mahonys

Counsel for the Respondent:

undefended

Solicitors for the Respondent:

Maria Barbayannis & Co

ORDERS

The husband forthwith do all such acts and things and sign all necessary documents (“the Transfer Documents”) to transfer to the wife, on a trust for sale (in accordance with paragraphs 3 and 4 below), all of his right, title and interest in the real property at 108 Lord Street, Richmond, being the land in Certificate of Title, Volume 10201 Folio 472 (“Lord Street”).
Notwithstanding the provisions of paragraph 1 above, and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia at Melbourne be forthwith appointed to execute the Transfer Documents in the name of the husband and do all acts and things necessary to give validity and operation to the transfer and the Transfer Documents.
Lord Street be sold as soon as possible, and the wife have the conduct of the sale.
The net proceeds of the sale be divided as follows:
(a)to pay any costs, commissions and expenses of the sale;
(b)to pay unpaid rates or outgoings in respect to Lord Street;
(c)to pay to the wife 82.5% of the balance; and
(d)to pay to the husband any sum remaining thereafter.
The children of the marriage M and K reside with the wife.
The wife be solely responsible for the long term and day to day care, welfare and development of the said children.
The wife’s application for property settlement be otherwise dismissed, and her application for spousal maintenance be adjourned sine die.
The proceedings be removed from the list of cases awaiting final determination.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 1686 of 2003

Applicant

and

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Before the court is the wife's application for property settlement which was filed on 18 March 2003. I note that in that application the wife sought (in paragraph 2) an order for spousal maintenance. The issue of spousal maintenance was not argued before me. I do not propose, therefore, to deal with it specifically in these reasons.
The husband did not participate in the proceedings. Yesterday I dealt with an application brought to the court by the husband's mother and sister, which application sought to persuade the court to appoint a litigation guardian for the husband of its own volition. I dealt then with the background to that application, and I dismissed it.
The wife’s application was served on the husband, and I am satisfied that he is aware of the existence of these proceedings and that, for reasons of his own, he has seen fit not to participate in them.
The orders sought by the wife are those contained in a minute of orders handed up to me at the commencement of the hearing today. These reasons are being delivered on an ex tempore basis after fairly limited time was made available to me to review the file and the evidence and to consider my determination. Given that the reasons are being delivered on an ex tempore basis, I reserve the right to amend the reasons as I see fit, and to add to them where addition is necessary for the purpose of clarification.
The documents relied upon by the wife in the proceedings comprise her application filed on 18 March 2003, her affidavit filed on 10 June 2003 but sworn on the previous day, her form 17 financial statement sworn on 15 March 2003, and the affidavit of the witness Trevor Crittle which was sworn on 15 July 2003 but filed in court with my leave today. The affidavit of Mr Crittle attaches a valuation of the former matrimonial home in Lord Street, Richmond. As I have already indicated, these proceedings were conducted on an undefended basis, the husband having filed no documents in response to the wife's application.
The background to this matter is not complicated. The wife was born in November 1963. The husband was born in July 1965. The parties were married in June 1989 and they separated in March 1999. They have not resumed cohabitation since that time. There are two children of the marriage, M who was born in January 1993 and K who was born in September 1994. The two girls live with the wife. They have lived with her since the date of separation.
In paragraph 6 of her affidavit, the wife deposes to the fact that the husband has no contact with the children, and that he does not provide any form of financial support for them.
The financial history of the marriage was somewhat difficult to discern from the affidavit material filed on behalf of the wife. Nevertheless, during the course of the proceedings the wife was called by her counsel, Mr Cronin, and gave oral evidence to supplement and clarify the matters contained in her affidavit. It would appear that the parties' financial history is as follows: At the commencement of the marriage in 1989 the wife owned a motor vehicle and had certain savings. The total value of those assets was approximately $30,000.00 The husband had savings of approximately $70,000.00.
Shortly after the marriage the wife's parents either purchased the next‑door property to their home or alternatively simply transferred to the parties the property that they already owned which was next door to their property. It would appear that the purchase price of the property at 15 Elm Grove, Richmond, which is the property that was transferred to the parties by the wife's parents, was $120,000.00 The wife’s parents had paid a deposit in relation to the property of $30,000.00 and accordingly approximately $90,000.00 had been borrowed by them in order to complete the purchase and was secured by a mortgage over the property in Elm Grove.
The parties did not long remain in Elm Grove. Later that year — in other words, later in the year 1990 — the property was sold. The net proceeds of sale amounted to $155,000.00. The evidence of the wife, which I accept, is that the savings of the husband and the savings of the wife were utilised to pay out the mortgage (of approximately $90,000.00) which had encumbered the Elm Grove property. However, during the period that the parties were the owners of the Elm Grove property they borrowed an additional $150,000.00 in order to acquire an interest in a business conducted by members of the husband's family. It was a business in which the husband had had some form of involvement.
The Elm Grove property having become unencumbered as a result of the payout of the mortgage obviously had to be re-encumbered in order to secure the borrowings to enable the parties to acquire the interest in the business to which I have referred. When Elm Grove was sold, the proceeds of sale were used to pay out the moneys that had been borrowed for the acquisition of the interest in the business. At that point in time the parties' only asset would appear to have been their interest in the business.
During the period from late 1990 until early 1995 the parties lived in rented accommodation. The husband's father died in 1992. Upon his death arrangements were made for a unit in Dandenong to be transferred into the wife's name. It would appear that although the wife was the legal owner of the property she did not regard herself as the beneficial owner of it. Notwithstanding that fact, for the period during which the parties owned the Dandenong unit they received rent from it. Clearly, that income amounts to a financial contribution on the part of the husband, or on his behalf.
In early 1995 (or perhaps late 1994) the parties purchased the former matrimonial home in Lord Street, Richmond. The purchase price was $190,000.00. As I understand the evidence, the purchase price was derived from the proceeds of the sale of the parties' interest in the business to which I have referred earlier. That business was sold for approximately $200,000.00. When the parties purchased the Lord Street property, it was still under construction. At around the time of the purchase of the Lord Street property, the unit in Dandenong was sold — and the moneys that were derived from that sale were used by the parties to complete the construction of the Lord Street property.
I understand from the evidence of the wife that some moneys were left over after the completion of the Lord Street property and that those moneys were used in subsequent years to assist in the financial support of the family. There were other moneys that were provided by the husband's family. Mr Cronin conceded in his opening that a further sum of approximately $15,000.00 was provided to the parties (or to the husband) by the husband's mother early in the marriage.
As far as the wife's family is concerned, it is clear that they provided the Elm Grove property for the parties, and when the Elm Grove property was sold the equity in it was retained by the parties. That amounted to some $30,000.00 — if one approaches the exercise in the way that the wife has done in her affidavit.
The husband's work history is very unclear. It would appear that he worked with his father until his father died in 1992. I assume that during that period the husband was paid for whatever work that he did, and that he made an appropriate financial contribution. As I understand the wife's evidence, the husband then worked in a plastics family for a period of approximately one year. Again, I assume from the evidence that I have heard that he was paid for his work during that year and that he made a corresponding financial contribution. From 1993 until separation the husband “hung around” the business to which I have referred earlier. He was not paid whilst he did so. The parties' interest in that business was sold in or about early 1995.
From 1995 through to 1999, it would appear that the husband worked on and off. On the basis of the evidence of the wife, it seems that he worked much more off than on. His financial contributions during the period 1993 through to 1999 would appear to have been minimal. I recognise, however, that during the earlier part of that period the Dandenong unit was rented out, as I have stated, and the parties derived the income from that rental.
As far as the wife's work history is concerned, the position is that she worked on a full‑time basis early in the marriage. She worked as a shop assistant from 1990 until 1995. I suspect that the wife may not have worked on a full‑time basis until 1995, due to the fact that her eldest child was born in 1993. Nevertheless it would appear that prior to the birth of her first child she worked on a full‑time basis. When her youngest child was approximately 18 months of age she returned to work. That was in or about 1996. She worked part‑time and earned approximately $100.00 per week.
The financial history of the parties' relationship tells but a small part of the story of this family. The wife's affidavit details the history of domestic violence that occurred during the marriage. It is clear from the evidence contained in the wife's affidavit that the husband was violent towards the wife on many occasions, and that he behaved in a threatening and overbearing manner. I do not propose to restate the matters set out in the wife's affidavit, but I have read paragraphs 9 through to 29 of the affidavit (in particular) and I accept what the wife says therein as being accurate in all respects. It was within that framework that the wife made the contributions that she did.
So far I have referred only to financial contributions. There are, of course, other contributions that are made by parties to a marriage and recognised by the law. The general approach that should be adopted by the court in relation to a property settlement application has been described in a large number of cases (see, for example, Pastrikos (1980) FLC 90-897, Lee-Steere (1985) FLC 91‑626, Ferraro (1993) FLC 92-335, Davut & Raif (1994) FLC 503, Clauson (1995) FLC 92-595 and Whitely (1996) FLC 92-684).
The court must first identify the assets of the parties. It must then attribute a value to each of those assets, usually as at the date of the hearing. Thereafter it must assess the extent of each party’s contributions under the various subheadings described in section 79(4) of the Family Law Act. Finally, the court must consider the financial resources, means and needs of the parties, and the other matters set out in section 75(2) so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment take place. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means.
In relation to the contribution of the parties under section 79(4) generally, it has been held that a global approach will usually be more convenient than an asset-by-asset approach, although the application of an asset-by-asset approach does not of itself amount to an error of law (see Norbis (1986) FLC 91-712).
Section 75(2) is concerned with the process of arriving at a just and equitable result. It follows that there may be circumstances in which the justice and equity of the case and the specific provisions of section 75(2) support an adjustment in a party's favour for matters which cannot comfortably be described as being of economic or financial significance (see in that regard McMahon (1995) FLC 92-606 at page 82,043).
Under section 79(2), the court is required to be satisfied that the order to be made is just and equitable, and not simply that the underlying percentage division of the net value of the parties' assets is appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings is just and equitable it is the justice and equity of the actual orders and not of the percentage distribution which must be considered (see in that regard W v W (1986) FamLR 538, Henderson (1987) FamLR 529 and Clauson (1995) 18 FamLR 693).
During the course of the trial Mr Cronin suggested that the issue of justice and equity referred to in section 79(2) might be an independent consideration, separate perhaps from the usual steps in the property settlement exercise to which I have made reference.
There have been cases in which the application of the consideration as to whether an order is just and equitable has been described as “the fourth step” in the property settlement exercise. In such a scenario, the first step would be described as the identification of the parties' assets and the placing of a value on those assets; in other words, the description or the ascertainment of the asset pool. The second step is the contribution exercise. The third step is the application of the section 75(2) factors.
In my view, it is clear that the preponderance of authority supports a conclusion that section 79(2) is not a fourth step in the property settlement exercise, and that there is no fourth step in that sense. I refer to the case of Russell (1999) FLC 92-877, in which consideration was given to precisely that question. It has been considered in other cases as well (see, for example, JEL v DDF (2000) 28 FamLR 1). But see Phillips (2002) 29 FamLR 128).
The problem with considering section 79(2) as a stand-alone requirement or consideration is that it is impossible to determine what factors may direct the court in its consideration of what may or may not be a just and equitable result in proceedings. Nygh J in earlier cases referred to concepts such as "palm tree justice" or "a soup kitchen approach" in relation to subjects such as these. In other words, his Honour was saying that it is impossible to simply look at the question of whether an order or a result is just and equitable without measuring or assessing that consideration by some yardstick. The approach set out in section 79 requires that the court use the considerations in section 79(4) (and, through it, s. 75(2)) as the yardstick and not other (undisclosed) considerations.
Mr Cronin also hinted that a fair and proper determination of the wife's entitlement might be arrived at by applying some form of means test. I do not wish to labour this subject, but I do refer counsel and the parties to the Full Court decisions in Lee-Steere and Figgins (2002) FLC 93-122. In those cases the Full Court emphatically rejected the concept of property settlement being based upon a party's needs as opposed to the factors otherwise set out in section 79 of the Family Law Act and explained how section 79(2) might actually operate.
I would refer as well to the Full Court decision in Russell, at paragraph 80:
It must be remembered in this regard that under section 79(2) of the act the court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed the "fourth stage", that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders, not of the percentage distribution which must be considered.
In other words, the determination of the proportionate or other split of the property between the parties is concluded before one looks at the justice and equity of the actual orders that are utilised to effect that distribution.
I turn now to consider the first step in the property exercise — which relates to the identification and valuation of the property of the parties at trial. During the course of the trial the identity and value of each item of property was clarified. The asset pool is simple indeed. It comprises the net or likely net proceeds of sale of the former matrimonial home, and the wife's superannuation entitlements. The value of the home would appear to be $430,000.00 (on the basis of the evidence of the valuer). Mr Cronin informed me, and I accept, that the selling costs are likely to be in the order of $20,000.00. The likely net proceeds of sale, therefore, are approximately $410,000.00. The net proceeds of sale must be used in the ascertainment of the asset pool because the orders that I propose to make will involve an order for the sale of the house. That, after all, is the order sought by the wife, and it is the only application properly before the Court.

Insofar as the wife's superannuation entitlements are concerned, the law states that I am entitled — if I am minded to do so — to treat those entitlements as property of the wife. I elect not to do so, however, and prefer to deal with them as a financial resource under the provisions of section 75(2)(b) of the Family Law Act. I do so because the wife is 40 years of age and has many years left to work before she will become entitled to those benefits. At the end of the day, however, the result may not be very much different — whether or not the entitlements are to be included as an asset.
I find, therefore, that the total value of the assets presently available for distribution between these parties is $410,000.00.
I turn now to consider the contribution issues. On the basis of the evidence now before me, there was no period of cohabitation between these parties prior to marriage. I have already dealt with the assets brought into the marriage by the parties, and the financial history of the marriage. It is clear from the evidence now before me that the husband made a greater financial contribution than did the wife during the period of cohabitation. Since the date of separation it is impossible to determine — with any degree of accuracy or precision — what the parties’ respective financial contributions may have been, but it is clear that the husband has made no direct financial contribution to the support of the wife or children. It is true, however, that the wife was able to remain resident in the former matrimonial home from the date of separation until approximately 12 months ago (when she vacated the home in the circumstances described in her affidavit). She was then in fear of the husband, and concerned for her safety and the safety of her children — and for very good reason, in my view.
I take into account under the general heading of “financial contributions to assets” the fact that the wife worked for the periods that I have referred to, the fact that the husband worked during the periods that I have referred to and that he did not work at other times. I take into account, as well, the assets that each party had at the commencement of the marriage, the funds that were provided to them directly or indirectly by their respective families and the other matters to which I have referred. When I take all those matters into account, it is my view that the husband's overall financial contribution to the assets available for distribution between these parties was significantly greater than that of the wife.
I turn now to the non-financial contributions made by the parties to the assets — that is, contributions under section 79(4)(b). There was very little evidence provided to me in relation to this subject. It would appear that the former matrimonial home was in an incomplete state at the time that the parties purchased it. I do not know what efforts each of the parties made towards the completion of the home and/or its improvement. The evidence before me reveals, however, that the wife was principally responsible for maintaining the home. Whether her responsibilities in that regard amounted to a contribution under section 79(4)(b), however, I do not know, but I propose to deal with that form of contribution under section 79(4)(c) in any event.
The wife has resided in the home, with the children since the date of separation. It would appear that the husband has not contributed in any way to the upkeep or improvement of the house, other than to allow the wife to reside there. Overall, and on the basis of the evidence before me, I am unable to find that that factor — namely, section 79(4)(b) — favours one party over the other. If it does, then I suspect that it favours the wife very slightly. But that is not the end of the contribution exercise.
The court must also consider the contributions that each of the parties has made to the welfare of the family constituted by the husband and the wife and their two children. The evidence before me reveals that the wife was primarily responsible for the care and supervision of the children, and that the wife was primarily responsible for housekeeping and homemaking tasks within the home. Indeed the evidence before me reveals that the wife was almost exclusively responsible for those roles during the course of the cohabitation between these parties. There can be no doubt that, since separation, the wife has been solely responsible for the care of the children and all that that involves, and for homemaking and housekeeping duties.
During the course of these parties' relationship there occurred the incidents to which I referred earlier. The manner in which the court should take into account evidence of domestic violence in a matrimonial relationship — and in the context of property settlement proceedings — is discussed by the learned authors of the CCH Family Law Service at paragraph 37,410 and by the learned authors of the Butterworths Family Law Service at [s 79.195]. Reference is made in both services to the Full Court decision in Kennon (1997) FLC 92-757. I do not propose to restate all the elements of the Kennon decision, but I have (in the short break between the conclusion of the trial and the delivery of these Reasons) revisited Kennon and re-read those parts of the decision most relevant to the matters in issue in this case.
At page 84,294 of Kennon the majority of the Full Court (comprising Fogarty and Lindenmayer JJ) said this:
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 section 79. We prefer this approach to the concept of negative contributions which is sometimes referred to in this discussion. In the above formulation we have referred only to domestic violence. But for the reasons which we indicated earlier its application is not limited to that.
Later in that decision, the Full Court made certain comments in relation to what had been described as the "floodgates" argument — in other words, that the principle enunciated by the Full Court should only apply in exceptional circumstances, lest it become what they described as common coinage in property cases.
The approach to which I have made reference — as endorsed in Kennon — has been approved by the Full Court in the subsequent decisions of C v C (1998) FLC 92-824 and JEL v DEF (2001) FLC 93-075.
I find that the case before me is indeed an exceptional case. The husband's behaviour was extraordinary. I have absolutely no doubt that it caused significant grief within his family, and I have no doubt that it made the wife's contributions significantly more arduous than they ought to have been. It significantly impacted — in an adverse manner — upon the contributions that the wife was obliged to make in her role of homemaker and parent. It is difficult to imagine a more stark example of the types of behaviour envisaged by the Full Court in the Kennon decision than the facts of the case now before me. They are truly exceptional. Nor did they cease at the date of separation. The husband's behaviour was repeated approximately 12 months ago and has led, amongst other things, to his current term of imprisonment.
The question of how to deal with the totality of the contribution factors in this case is a difficult one. There is no doubt, as I have stated earlier, that the husband's contributions in a financial sense (or, at least, the contributions made on his behalf in a financial sense) outweighed those made by the wife or on her behalf. But financial contributions are but one part of the contribution exercise. Leaving aside contributions under section 79(4)(b) — in relation to which there was virtually no evidence in this case — there can be no doubt that contributions to the welfare of the family in the broadest sense are extremely important, and must be given considerable weight in themselves.
I repeat that, in my view, the factual matrix in this case is exceptional. It fell to the wife to be the homemaker and parent, and to be solely, or almost solely responsible, for those roles for almost all of the period of these parties' relationship. But it also fell to the wife to carry out those tasks in the most trying of circumstances. Those circumstances were trying (which is an understatement, of course) due wholly to the husband's actions.
When I have regard to the various contribution factors to which I have made reference, including the initial financial contributions of the parties, the additional financial contributions made by or on their behalf, the receipt of the income from the Dandenong unit, the moneys earned by each of them during the course of their relationship and their respective contributions to the welfare of the family, I conclude that an appropriate division of the parties' assets available for distribution between them — on the basis of contribution alone — is 60 per cent to the wife and 40 per cent to the husband.
So far, in considering the question of property settlement, I have addressed the question of contribution only. Quite clearly, the court is entitled to make an adjustment to a party's property settlement entitlement on the basis, amongst other things, of both parties' respective means and needs. The Family Court has been critical of shorthand terms being used to describe this, the last step in the property settlement exercise, preferring to refer to it simply as the section 75(2) factors (see Clauson (1995) FLC 92-595). In essence, section 75(2) is concerned with the process of arriving at a just and equitable result (see Waters v Jurek (1995) FLC 92-635).
I have already referred to the ages of the parties, in that I have referred to their dates of birth. I have no evidence as to the state of health of the husband. As far as the wife's health is concerned, I heard from her today that she is in need of counselling, and that she has a certain physical illness which does not prevent her from working. It is my observation of the wife that she is in a very vulnerable state.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment must next be considered. The wife's income is modest indeed. She works approximately seven hours per week. She works only during school hours, so that she can be available at all times for the care of her children who have suffered from the actions of their father, and are themselves involved in and in need of ongoing counselling. I find that the wife does not have the mental or emotional capacity to work longer hours than those which she presently works. Her earning capacity may improve at some time in the future, but it seems to me — on the basis of my observations of the wife and the evidence before me — that it will take quite some time before she could even begin to put herself into a position where she could work something close to full‑time.
I have no evidence as to the husband's capacity, either physical or mental, for appropriate gainful employment. I am aware that he will be incarcerated for something in the order of another year. There is no evidence before me to suggest that the husband cannot obtain employment after that time if he were minded to do so.
Under the general heading of Financial Resources, I take into account the fact that the wife has superannuation entitlements of some $24,000.00.
The wife has the care and control of two children of the marriage who are under the age of 18 years. As I indicated earlier, their father has no contact with them. The likelihood is that he will not have contact with them for a long time into the future. They are afraid of him, and the wife is afraid of him. I take those matters into account, as I must.
Very little evidence was presented to me in relation to the commitments of each of the parties that may be necessary to enable them to support themselves or their children. I am aware, of course, that the husband does not pay child support. It therefore falls to the wife, her family and the taxpayer to support the children of the parties. The wife has responsibilities to support her children and herself. The husband has responsibilities to support his children, but he is not discharging those responsibilities. Due to the fact that he is currently in prison it would not be possible for him to discharge them, but nor did he discharge them prior to being imprisoned. I have little confidence that he will discharge them after he is released from prison.
The wife is in receipt of a Commonwealth pension allowance or benefit, as referred to in her financial statement.
I take into account that each of the parties is entitled to a reasonable standard of living. In the wife's case she is entitled to a reasonable standard of living having regard to the fact that she is going to have to care for these two children on a full‑time basis from now and for the foreseeable future, without assistance from the husband. She is entitled to do so in as comfortable a situation as is possible and as is reasonable in all the circumstances. The husband is also entitled to a standard of living that is reasonable for him. Such a consideration becomes academic for the next year or so whilst the husband is incarcerated, but it seems to me that the husband will have every opportunity, after he is released, to confront and deal with his problems and to focus on re-establishing himself and recommencing employment.
Section 75(2)(k) refers to the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. In this case, it is not the duration of the marriage that has affected the wife's earning capacity. Her earning capacity has been effected by the actions of the husband and the affect of his actions on the parties' children and the responsibility that the wife must now bear for the support and care of those children. If this is not a factor that is relevant under section 75(2)(k), then, in my view, it is surely relevant under section 75(2)(o).
I am conscious of section 75(2)(l), which requires the court to have regard to the need to protect the wife's desire to continue in her role as a parent. In the circumstances of this case it is my view that the wife properly wishes to spend as much time as she can with her children — comforting, caring for and supervising them.
It appears that the wife is not cohabiting with any other person. I am well aware that the husband is presently incarcerated, but I do not know whether, when he is not imprisoned, he is in fact cohabiting with another person. I have no information regarding his financial position.
I am obliged to take into account child support matters, and I do so. The reality is that the husband has not paid child support since separation, and is not likely to do so in the foreseeable future.
There are no other facts or circumstances which, in my view, the justice of the case requires to be taken into account beyond those that I have already referred to. The impact of domestic violence up to the present time has been taken into account under the general umbrella of contributions. The prospective effect of that domestic violence has been taken into account under the general heading of the section 75(2) factors.
Having regard to all the evidence before me, I conclude that the most significant of the section 75(2) factors are the following:
a)the children reside with the wife;
b)the husband is not having any contact with them and is unlikely to have contact with them in the future;
c)the husband's earning capacity is not being exercised (and if it were to be exercised, I have little doubt that it would be significantly greater than that of the wife);
d)the husband has provided to the wife no child support;
e)the wife has the needs, as I have described them earlier in my discussion of the section 75(2) factors, which are concomitant with her obligation to support the children without the assistance of their father for all of the foreseeable future.
But even if the husband's earning capacity were not to be regarded as significantly greater than that of the wife, it would make no difference to the conclusion which I now reach. Thus, and on the basis of the evidence before me (and having regard to the fact that the purpose of the section 75(2) adjustment is to assist the court with the process of arriving at a just and equitable result) I conclude that an adjustment should be made to the wife's entitlement on the basis of contribution alone by increasing that entitlement from 60 per cent to something between 80 per cent and 85 per cent. In my view, it would be intellectually dishonest for me to choose either of those two figures, and hence I select the midpoint — being 82.5 per cent.
I have already found that the net value of the assets presently available for distribution between the parties upon the sale of the former matrimonial home will be approximately $410,000.00. It can be seen that 82.5 per cent of that figure is $338,250.00.
The Full Court has cautioned against assessing section 75(2) factors in percentage terms without considering the real impact of any proposed adjustment; in other words, the real impact in money terms is the critical issue (see Clauson (1995) FLC 92-595). In the present case the section 75(2) adjustment equates to 22.5 per cent of the asset pool or $92,250.00. I am satisfied that, in the extraordinary circumstances of this case, that adjustment is proper, and just and equitable.

I will prepare an appropriate order under section 106A which will take into account my view that the court considers it necessary to exercise its powers under the section notwithstanding that documents will not have been presented to the husband.

I, Paul O'Halloran, certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 2 March 2004