Kucera & Kucera
[2009] FMCAfam 1032
•2 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUCERA & KUCERA | [2009] FMCAfam 1032 |
| FAMILY LAW – Property – long marriage – Kennon argument – coercive controlling violence – wife’s contribution made more onerous by the husband’s violence – assessment of Kennon claim – non-disclosure by the husband. |
| Family Law Act 1975, ss.75(2), 79 |
| Bingham & Bingham [2009] FMCAfam 99 Family Law Council, ‘Violence and the Family Law Act: Financial Remedies’ (Discussion Paper, Family Law Council, 1998). J Dewar, ‘Family Violence and Property Distribution: Where Now?’ Conference Handbook (2000) (proceedings of the 9th National Family Law Conference, Sydney) Family Law Section, Law Council of Australia and Television Network at 293 - 298. Jaffe, PG, Johnston, JR, Crooks, CV, Bala, N, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ Family Court Review Vol. 6 No. 3, July 2008, Association of Family and Conciliation Courts. Kelly, JB, Johnson, MP, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ Family Court Review Vol. 6 No. 3, July 2008, Association of Family and Conciliation Courts. |
| Applicant: | MR KUCERA |
| Respondent: | MS KUCERA |
| File Number: | SYC 3588 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 5, 6, 7 May & 23 June 2009 |
| Date of Last Submission: | 23 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | Sharee Cassel & Associates |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Coleman & Greig |
ORDERS
That within forty-two days of the making of these Orders the husband pay to the wife $179,925.
That simultaneously with the payment in Order 1 the wife do all things necessary to transfer to the husband all her right, title and interest in the former matrimonial home at Property F being whole of land comprised in certificate of title volume [omitted] into his name solely.
Failing the husband’s payment in accordance with order 1, within twenty-eight days thereafter the wife pay to the husband in the sum of $120,075.
That simultaneously with payment pursuant to Order 3 the husband vacate the property at Property F.
That the husband and wife be declared to have the sole right title and interest in respectively:
(a)Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively; and
(b)Any moneys, shares and debentures which stand in their sole name respectively at the date hereof; and
(c)Any entitlement to superannuation which stands in their sole name respectively at the date hereof.
Leave is granted to relist the matter before Federal Magistrate Altobelli on 7 days notice in the event that the parties are unable to comply with orders 1-4 for further orders in regards to the interpretation, implementation or enforcement of these orders and these reasons for judgment.
IT IS NOTED that publication of this judgment under the pseudonym Kucera & Kucera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3588 of 2007
| MR KUCERA |
Applicant
And
| MS KUCERA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for alteration of property interests pursuant to s.79 of the Family Law Act 1975, commonly known as a property settlement. The applicant husband is 66 years old and the respondent wife is 54 years old. They met in November 1971, married in 1972 and have 3 adult children aged 36, 31 and 27. The parties finally separated in December 1998 over 10 years before the final hearing in this case. The husband asserts that this was the one and only separation, but the wife asserts that this was the third, and final separation. As part of her case the wife asserts that both she and the children were subjected to serious and sustained family violence during the course of the marriage such that her contribution was rendered significantly more arduous. In addition the wife asserts that the husband has not properly disclosed his financial circumstances before the court. These are issues that I will need to determine, amongst other issues. The husband gave evidence through an interpreter, but he did not need an interpreter all of the time. He spoke with a thick accent, but I found him relatively easy to understand when he spoke in English.
Background
It is common ground that when the parties married in 1972 the husband owned a property at Property W. It was later sold, in 1975, so that the parties could purchase a property at Property C and there is a dispute between the parties about how much, if anything, the husband received from the sale of Property W and applied towards the purchase of Property C. From 1976 it is common ground that the parties lived rent-free with the wife’s parents whilst they rented the property at Property C. The wife suffered an injury at work and in about January 1982 received a compensation payment of approximately $40,000. In about June 1982 they purchased the property at Property F using most of the proceeds of the wife’s worker’s compensation settlement.
By 1982 the husband and the wife owned properties at Property C and Property F. Indeed they still owned these properties as at the date of separation in 1998. Between 1982 and 1998 a number of things happened, some of which are contentious. There is no dispute that during this period they established and conducted a business which they described as “[M] Pty Ltd”. The evidence indicates that this is, in fact, [M] Pty Ltd. The business appears to have operated in the building industry [details omitted]. During this period it is alleged by the wife that there were a number of separations. The husband experienced pressure from creditors and this resulted in his bankruptcy in 1996.
Both parties allege that they had discussions about property settlement during this period which suggests that from the perspective of both the husband and the wife there were clearly difficulties in the marriage even though it is common ground they had not separated on a permanent basis. In any event the husband transferred to the wife his interest in the property at 12 Property F and, at a slightly later time, also his interest in the property at 115 Property C. There is a dispute about whether money was paid in consideration of these transfers and whether, in the ultimate analysis, it really makes any difference to the final outcome in these proceedings.
By the time of the final separation in December 1998 it seems common ground between the parties that the property owned by either or both of them consisted of the houses at [F] and [C] and the business plant and equipment which appears to have emerged from the husband’s bankruptcy relatively intact. It is clear that both properties were in the name of the wife. The husband’s trustee in bankruptcy commenced proceedings against the wife under ss.120 and 121 of the Bankruptcy Act 1966 but these proceedings appear to have been settled, eventually, in consideration for payment of $20,000 by the wife, to the trustee in bankruptcy, such payment actually occurring about a year after the date of separation.
The husband has continued to remain in occupation of the property at Property F. The wife sold the property at [C] and subsequently purchased properties at[R] in Sydney, [X] in Queensland, and [Y] in Queensland. It seems as if the husband, at some stage after separation, incorporated a company called [D] Pty Ltd as the vehicle for him to continue to operate his formwork business. There is an issue about the value of this business, its plant and equipment, and the extent to which, if at all, the husband continues to operate it, and whether it provides an income for the husband.
On 17 December 2007 FM Halligan granted leave to the husband to institute property settlement and spousal maintenance proceedings out of time and restrained the wife from selling, mortgaging, or in any way dealing with the Property F property. The husband commenced proceedings within the time stipulated by Federal Magistrate Halligan and the matter was set down for hearing before me.
A number of issues arise in the context of this case. The wife raises significant issues about the husband’s credit, and I agree that his evidence both written and oral does give rise to this issue. The wife asserts that the husband has not been full and frank in his disclosure to the court. I agree that based on the husband’s written and oral evidence there is an issue about non-disclosure. The wife makes very serious allegations about family violence during the course of the marriage. The husband denies these allegations. This is a significant issue to be decided in this case. Both the husband and the wife provide evidence about what I describe as the “informal” property settlement that they entered into before their final separation. I will need to decide to what extent this is an issue. I will then need to determine the property pool particularly taking into consideration the properties acquired by the wife since separation. Contribution will then need to be assessed, including the impact, if any, of any findings about family violence that I make. The husband asserts that there should be an adjustment made in his favour under s.75(2) of the Family Law Act. That is another issue I will need to decide. Having regard to all of the above matters, I will then need to determine what is the just and equitable order to make on the facts of this case.
Applicable law
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.
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.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole.
My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution of the parties in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
A significant issue in this matter was the alleged non-disclosure of the husband. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir (1993) FLC 92-338 at 79,593–4 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759, and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
The final legal issue that arises in this case is that raised by the wife – the extent, if at all, that her contributions were rendered more arduous as a result of various aspects of the husband’s conduct. The authority is the Full Court’s decision in Kennon and Kennon (1997) FLC 92-757. A useful summary of the decision is contained at page 84, 294 of the report:
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. 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, 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 ¾ a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
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 a 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 (as in Ferguson) 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)…
The passage from the Full Court's decision in Kennon clearly indicates that it is a relatively narrow band of cases to which a Kennon-type adjustment would apply. The Full Court's decision focuses on conduct during the marriage, but not afterwards, which suggests the concept was not intended to apply to post-separation contribution. There is a clear emphasis by the Full Court on the need to establish that the violence had a discernable impact on the contributions made by one party. The focus seems to be on establishing either that there has been a significant adverse impact on a party's contributions, or that their contributions are significantly more arduous than they ought to have been. As I read the Full Court's decision, little or no room is left for inference. The claim can only be established by probative evidence that satisfies the Court on the balance of probabilities.
Credit issues
Counsel for the wife submitted that there were real issues of credit in this case given the completely contrary evidence given on so many issues by the husband on one side, and by the wife and three daughters on the other. Counsel for the husband quite properly conceded in closing submissions that the issue of the husband’s credit was a live one. I therefore propose to deal with this issue at an early stage in these reasons.
I find that the husband’s evidence lacked credibility in so many different ways and in so many different contexts that it is difficult to accept most of his evidence, unless it is corroborated by independent documentation. Where the husband’s evidence conflicts with that of the wife, or the three daughters, I prefer the evidence of the wife and daughters, unless independent documents suggest to the contrary. I provide the following examples of his evidence that leads me to this finding. I stress that these are examples only, and do not constitute an exhaustive list.
a)One of the main issues in this case is the family violence that was allegedly perpetrated by the husband on the wife and children. I will discuss this in more detail below. The evidence of the wife and children on this issue was graphic, consistent, and corroborated in many instances by Police and Department of Community Services documents produced on subpoena, as well as the evidence of Dr L. The wife and children could not be shaken in cross-examination about this evidence, in any significant way, despite the thorough cross-examination conducted by Mr Thomas, counsel for the husband. The husband’s denials about violence were in dogmatic and forceful terms – there was no violence as alleged. At times it felt like the husband was talking about a marriage and family life with another wife and other children, such were the differences in the evidence. The husband denied slapping his daughter [V], for example, but one of his own witnesses, Mr M, gave evidence that the husband had indeed slapped her across the face a couple of times, and that the husband had been “hard on the children”. It was significant to observe the cross-examination of the children by the husband’s counsel about the violence allegations they made. It was put to them in very careful terms that they had exaggerated their allegations, but it was not placed any higher than that. The husband really had nothing he could say about the corroborative evidence of Dr L in relation to the family violence allegations. In this case the husband was confronted with an almost overwhelming amount of cogent evidence that indicates that he had been violent to his entire family over a sustained period of time. To meet this with blanket denials makes me doubt the veracity of the husband’s evidence.
b)The husband became bankrupt in about 1994. The transcript of his evidence in an examination before a Registrar of the Federal Court of Australia became Exhibit W2 in these proceedings. His evidence was on oath. In cross-examination in this case the husband openly stated that he had lied in the Federal Court about when the marriage ended, about transfers of property, about the source of funds to provide consideration for the transfer, about the extent of borrowings from the ANZ bank and about his actual ownership of business equipment and materials. The corollary of this is that the evidence he gave about these issues in the present case was quite different to the evidence he gave in the Federal Court. He justified his actions by saying that he was trying to protect himself, his family and his property. The husband showed neither remorse nor embarrassment about this. My overall impression of the bankruptcy of the husband was that it was the most convenient method for him to avoid his creditors at the time, and that for all practical purposes nothing changed in terms of day to day family and business life. Indeed Mr M, the husband’s own witness, gave evidence in cross-examination to the effect that during the husband’s bankruptcy he became director of the company which continued the husbands’ business, but his role was to sign off on financials, and drive a truck for the husband “who was my boss”. He gave me the strong impression that he was merely the husband’s puppet during this period. Whatever the husband’s own views or perceptions may be about the bankruptcy and the evidence he gave in the Federal Court, it leaves this Court with considerable doubts about his credibility. He lied on oath in the Federal Court, and this Court is entitled to draw the inference that he is at least capable of doing the same in these proceedings, especially when other evidence raises issues about his credit. He manipulated his financial affairs before the Federal Court, and this Court is entitled to infer that he is capable of doing the same in this case.
c)The husband’s affidavit evidence and oral evidence was often inconsistent, even on relatively minor and one would have thought uncontentious issues. For example at paragraph 33 of his affidavit he asserts that he had not expended any monies on paying lawyers in Croatia about land he had inherited. In cross-examination he conceded that he had spent $4-500. In relation to employment he asserts at paragraph 35 that he ceased working in or about 2006. At paragraph 44 he deposes to his inability to work as a [tradesperson], the disabilities he suffers, and the medication he is on. But in cross-examination he agreed that he had indeed worked one or two days the week before the hearing doing little jobs and just helping friends by providing [materials] to them for free. He also agreed that in the last month he had worked at “two little jobs”, one worth $6,200, and the other $9,000. One may well observe that if these were “little jobs”, what would a “big job” look like?
d)The husband demonstrated a remarkable ability to change his evidence once confronted with documents that were inconsistent with what he said. His evidence in cross-examination, for example, was that he had “absolutely not” remitted money back to Croatia on the sale of the property at Property W. When confronted with certain documents he firstly said that perhaps the wife had sent the money in his name, and then that “someone” had sent the money in his name. He was cross-examined about the date of separation but when confronted with the transcript of his evidence in the Federal Court he again changed his evidence. At paragraph 20 of his affidavit the husband asserts that he signed a transfer of the Property F and Property C properties to the wife in order to protect them from his business creditors. In cross-examination he said that he had in fact signed two transfers but at about the same time. He labelled as untrue the assertion that the two transfers were signed six or seven months apart. Finally after being confronted with copies of the transfers he conceded that he had signed them several months apart. However he insisted that the consideration stated in the transfers was incorrect, even though he was able to identify his own signature. Indeed he rather colourfully described the receipt of consideration stated on the transfer as “a big bullshit”.
e)At paragraphs 32 and 33 of the wife’s affidavit she makes an assertion that the husband had forged her signature on two [F] City Council forms, notifying Council of a change of address, in 2004 and 2006. Both documents are clearly in the wife’s name. He denied signing the first one, but agreed that he had signed the second one dated 24 August 2006. There can be no room for uncertainty here. The Property F property had been transferred to the wife in 1995, eleven years before the husband signed a document that is clearly in the wife’s name. These are matters that clearly go to the husband’s credit in the eyes of the Court. It was an act of forgery.
Disclosure issues
The findings that I have made about the husband’s credit do cast a shadow over the issue of non-disclosure. The evidence that I refer to below stands independently of the evidence I refer to above.
Counsel for the wife submitted at the end of the case that the Court was still not fully appraised of the husband’s true financial circumstances, and I agree for the reasons I set out below. I provide the following examples from the evidence to support my finding. This is not exhaustive.
The husband asserts that he has no property in Croatia. He deposes in paragraph 35 of his affidavit to having inherited his father’s estate in 1994 but having formed the view that the property inherited was not valuable he renounced his interest in the estate in favour of his siblings.
a)The wife gives evidence about these matters at paragraph 30 of her affidavit and she annexes copies and translations of the will of the husband’s father, documents evidencing monies remitted to Croatia, and Croatian title search which shows that almost twenty years after the death of the husband’s father, it was still in his name.
b)The documents satisfy me that substantial sums were sent to a Croatian lawyer, and certainly more than the $4-500 which the husband is prepared to concede. The lawyer’s attendances seem to cover a period between at least 6 September 1994 and 26 March 1997. In cross-examination the husband insisted that it was the wife who sent these monies, and the wife who pursued this litigation arising out of the estate. He asserts that no one is paying the taxes on the Croatian property, and “no one is the owner” and that the government will take it. He mentioned, however, that his aunt had written to him about three months prior to the hearing telling him about the poor condition of the buildings on the land. I thought this was rather curious in view of the husband’s assertions that he had no interest in the Croatian land.
c)I do not accept the husband’s evidence about not having an interest in land in Croatia. Substantial sums of money were sent to Croatia at a period corresponding with the husband’s bankruptcy in Australia. The husband is clearly a man who is careful with his money, and secretive and controlling about his financial affairs. I find it highly improbable that he would have paid monies to a Croatian lawyer and then simply abandoned his share of an inheritance. It is particularly curious that his aunt living in Croatia would ring him earlier this year to complain about the state of a property in a context where the husband asserts he has no interest and indeed has had no interest in the properties for over ten years.
d)I therefore find that the husband has an interest in property in Croatia that he has not disclosed to the Court, the value of which is not know.
The husband swore four financial statements during the course of these proceedings, two of which he read as part of his case (17 January 2008 and 20 May 2009) and two of which the wife read as part of her case (18 May 2007 and 4 September 2007). In his latest financial statement the husband listed as an asset belonging to him a 2005 Holden Commodore motor vehicle having a value of $13,200, but this did not appear in earlier statements. The last statement was filed during the course of the hearing – indeed during the husband’s cross-examination. In cross-examination on 4 May 2009 he asserted that his niece had given him the vehicle to drive but it really belonged to her. Notwithstanding that, it was registered and insured in his name as he had a 65 per cent no claim bonus on his insurance. He agreed he has had the car for about one and a half years, that his niece lives in Melbourne, and that this is the car he drives when he is not working. He purchased the car at auction, paid for it on his credit card, and asserts that his niece then paid him back, but he could not say when, and could not produce any credit card statements to corroborate this. When cross-examined on 23 June 2009, the said car now appearing as an asset owned by him on his latest financial statement, he insisted that it was his on paper only, and not really his. I do not accept the husband’s assertion that his vehicle is not actually his. He finally disclosed ownership of it after cross-examination started to reveal the implausible nature of the husband’s evidence. In any event, between
4 May 2009 and 23 June 2009 he could have easily obtained the credit card statements, or copies thereof, to corroborate at least part of his story about how the vehicle was purchased. His niece could have filed an affidavit corroborating his evidence. Regrettably this is yet another example of the husband not disclosing his assets, and of his willingness to change his evidence when confronted with uncomfortable truths.
It is only in his last financial statement sworn 20 June 2009 that the husband discloses any income from his business conducted through
[D] Pty Ltd, and that is $77 per week. This was filed, of course, after he had been cross-examined about his work and income. It is not revealed in any of his earlier statements. In his last Financial Statement he asserts that [D] Pty Ltd has a nil value. This is at least consistent with prior statements. And yet his oral evidence indicates that
[D] Pty Ltd owns a truck and a quantity of [materials] in such quantity that it needs to be stored at a property in [E] on which he pays rental at a rate of $250 per month. The rental expenditure is not referred to in his Financial Statement. The husband asserted in cross-examination that his business has no value, and that he’d have to pay someone to take it. However he agreed that in 1999 the business had materials (presumably [omitted]) that were sold for $60,000, and that another $80,000 worth had been stolen ie $140,000 worth of equipment and materials. He agreed in cross-examination that there was other material not disclosed for tax purposes – “secret materials” kept at [E], but he could not say how much it was valued at. The business also had two trucks which the husband asserts the wife sold. However he agreed that he still retained currently, through [D] Pty Ltd, an eight tonne tabletop truck with crane, a Holden ute, a shed, and two shipping containers, all of which are kept at [E]. I find it inconceivable that these goods have no value whatsoever. In just one month this year the equipment in question generated income totalling $15,200, according to the husband himself. His cavalier attitude about the value of the [materials] and other goods is evident from a question asked of him in cross-examination. When asked why the husband would pay $250 per month to store goods that he asserts are valueless, he responded that if the wife “whinges about the materials she can have it”. The comment of the husband provides a revealing insight about his perception of the issues before the Court. The wife’s complaint about non-disclosure was whinging, ie it was carping over relatively minor matters. Moreover she could have the [materials] and equipment in question – a flippant attitude given that their real value was in his hands, not hers, due to his experience in the industry – a matter of which he was quite aware. Regrettably this is yet another example of the husband’s cavalier, indifferent attitude about disclosure. I find he has not discharged his duty of disclosure to the Court. I do not know the real value of the business conducted by the husband through [D] Pty Ltd, nor do I know the value of its materials and equipment. I know that is it capable of generating an income of at least $15,000 per annum.
The husband had boarders residing with him in the home at Property F for a period leading up to the hearing. This is nowhere disclosed in his written evidence. In cross-examination he described the boarders as a man and woman who helped him to pay bills, who had been there a few weeks, but were conveniently away on holidays at the time he swore his affidavit, hence no reference to them. They paid the husband no money, he asserts. He did not even know their names. Strangely when he was further cross-examined about this later on a resumed date of the hearing, there was only one boarder, a woman, whose name he could still not remember, who had boarded with him for two or three months, and who paid him nothing. I find this evidence of the husband to be highly improbable. I do not accept it. As with many other aspects of the evidence I doubt if the Court is being presented with all the relevant facts. It is more likely than not that the husband has derived income from boarders in the past, and may have the capacity to do so in the future.
Family violence
The wife’s evidence about family violence is set out at paragraphs 35-55 of her affidavit. She asserts that the violence commenced from early in the marriage, and continued until the final separation on
14 December 1998. The wife’s evidence is quite detailed, and it is difficult to do justice to her account in these reasons without reproducing her evidence. Her evidence, which for the reasons I set out below I accept, is too long to reproduce. And yet I am left with a strong sense that the summary that I am about to embark on will not accurately reflect what I find the wife experienced at the hands of the husband.
Paragraph 35 outlines the physical violence which she experienced on a weekly basis. This included being punched on the head and face, slapped across the face, kicked, struck with pots, pans, knives and wooden spoons. This was accompanied at times by threats involving a knife.
Paragraph 36 onwards deals with the husband’s controlling behaviour including control of money, the friends who could visit the home and accusations of infidelity.
Paragraph 41 sets out some of the verbal abuse the wife experienced including: “You are a slut”, “You are good for nothing”, “You are too dumb to drive. If you get a licence I will kill you”, “You are a bitch”, “I will kill you”, and “Go and fuck your mother”.
Paragraphs 42-45 deal with the husband’s abusive behaviour in the context of the wife’s role as a homemaker eg in household work, cooking etc. There can be no doubt that the wife’s contribution in this regard was rendered considerably more arduous as a result of the husband’s abuse.
Paragraphs 46-51 contain evidence about family violence in the context of parenting, and the family violence perpetrated by the husband against the children.
There were three separations between the husband and the wife, the third one being the final one. At paragraph 52(a) the wife deposes to the circumstances of the first separation on 20 September 1992, following an assault the wife described in these terms:
I left the former matrimonial home on 20 September 1992 and
Mr Kucera and I separated after Mr Kucera assaulted me. I sustained black swollen eyes and bruising all over my body.
Mr Kucera said to me words to the effect of , “Where is [V]?” He was swearing at me and screaming at me in an aggressive tone. He said to me words to the effect of, “[G] has told me that you know where [V] is.” Mr Kucera then began striking me in the face with his closed fist and threw me to the floor on my back.
Mr Kucera kneeled over the top of me and continued striking me in the in the face as he held me down. Mr Kucera repeatedly punched me in the face with his closed fist. Mr Kucera grabbed a knife and as he held it in his hands screamed at me words to the effect of, “I will kill you”. I was crying and thought he was going to kill me, I kept saying to him words to the effect of “please don’t kill me, please”. Mr Kucera kept punching me in the face until I no longer had the strength to struggle back. When [Mr Kucera] stopped punching me I just laid on the floor crying. When I woke up the next morning I had severely swollen eyes and nose, which appeared to be broken. I was also heavily bruised all over my body.
The wife annexes to her affidavit photographs that she asserts were taken by her cousin, Mr M. I will deal with his evidence about this incident below. The photographs became exhibit W6. They show the wife with quite significant bruising to her eyes, and in particular her left eye. The husband does not deny the injuries shown in these photographs, and I deal with his version of this event below.
The wife deposes to the circumstances of the second separation in paragraph 53(b), and to further violence towards her and the children in paragraph 52(c) – (e).
The final separation took place on 14 December 1998, and is discussed at paragraph 54, and annexed are copies of the Apprehended Violence Complaint and Summons, and Order.
She deposes in paragraph 53 as follows:
I never reported any of the incidents of violence to the police until after final separation as I feared that Mr Kucera would kill me or my children and family as he so often threatened. I am still scared of Mr Kucera and worried about what he will do to me if he locates my residential address. I always complied with what
Mr Kucera wanted me to do as I was very concerned that he would kill me if I did not. I did the best I could to protect the children from the violence and try and shield them from
Mr Kucera’s behaviours. I would deny that Mr Kucera hit me when questioned by the Department of Community Services.At paragraph 55 the wife deposes to some of the impacts on her of the violence she experienced:
I regularly attended my general practitioner Dr L with physical signs of injury. After separation I became depressed as a result of feeling helpless for all of those years of violence. I resigned from my employment with [B] and was sent by Centrelink to commence counselling with [omitted]. My last appointment with them was on 1 April 2003. I was prescribed anti-depressant medication and attended an education program on this medicine with Pfizer called Rhythms. Annexed hereto and marked with the letter “Z” is a true copy of letter received from Pfizer Pty Ltd dated
31 March 1999. After the incident in 1992 referred to above, I attended counselling with the [F] Community Health Centre. I would regularly attend counselling as a result of the violence perpetrated against me by Mr Kucera.Evidence about family violence is given by each of the parties three daughters. [S] is the youngest child. Her affidavit was sworn 23 April 2009. Paragraphs 3-5 set out evidence about the husband’s violence towards her, and paragraphs 6-7 about the violence towards the wife and other children that she witnesses. She deposes to physical assaults by her father including punches and slaps to the face, being struck with a branch or sticks across her body and legs, being kicked and screamed at, verbally threatened and abused, and being threatened with a knife. [L] is the middle child, and her affidavit was sworn 20 March 2009. Her evidence is similar to, but by no means identical to, the evidence of her sister. [V] is the oldest child. Her affidavit was sworn 20 March 2009. Her evidence is similar to that of her sisters.
Subject to the important matters I discuss below, the evidence of the wife and her three daughters corroborate the assertions each make about family violence in the household.
The wife asserts that her allegations of family violence are corroborated by her doctor, Dr L. Dr L, a General Practitioner, and family doctor for the entire Kucera family, gave evidence by telephone.
Dr L was examined by counsel for the wife in relation to the notes that he had produced in response to a subpoena. The notes were barely legible and it was necessary for Dr L to explain what his notes meant. The following is a summary of Dr L’s evidence about his notes.
·On 15 April 1991 there is a note that the husband is in gaol following an assault on his daughter. He prescribed Murelax for the wife in order to calm her down.
·The entry on 21 September 1992 refers to an assault by the husband last night 20 September. Husband very violent. Short tempered. The doctor recorded the wife’s injuries on a body chart. She had a bruised eye area that was purple/yellow in colour. She had a small laceration at the region of the left eye. Right wrist scratch. Bruised right and left hip yellow in colour, tender nose. Mark over the right ear region just to the back of the ear, swollen and tender. On right shoulder bruise blue/black in colour. Wife complaining of headaches and vertigo. Upset and in tears.
·
25 September 1992 observed injuries to the eye, wrist. Patient forced to move out of house, chased out with knife on
21 September 1992. Diagnosed as domestic violence with husband for counselling referred to intake officer.
·
Counsel for the wife asked Dr L whether he had heard anything from the wife, or anyone else, about a sheep being involved in the injuries that were referred to in his notes of 21 September 1992. Dr L indicated that he had not. However, he indicated that
Mr Kucera had made reference to a sheep recently. Dr L was asked to comment whether, in his experience, the injuries that he observed were consistent with an assault, or with an encounter with a sheep. Dr L indicated that looking at the bruising, scratches, headache and vertigo it was more likely from domestic violence. It is possible that it was a sheep but he would then find it difficult to explain the bruising at the back of the ear.
·13 November 1992, patient upset, violent spouse, another daughter leaving home.
·18 October 1996 counselling re husband for aggressive behaviour. Dr L explained to counsel that the counselling would be for both parties to assist with their relationship or family therapy. In response to a question from counsel Dr L indicated that he thought the wife was seeking assistance and he, Dr L, felt that they needed expert assistance like a psychologist or a relationship expert. Dr L thought that Ms Kucera was clearly seeking assistance for both of them.
·18 November 1996 family crisis, left husband. Emotional distress.
·27 October 1997 difficulty with domestic violence, husband. Referral Doctor psychiatrist.
·22 September 1997, domestic violence, advised to separate for good. In response to a question from counsel Dr L explained that he was working on trying to keep the marriage together but that things were not going to work out so it was best to separate and cut loose.
The final questions from counsel for the wife indicated that both counsel for the wife and counsel for the husband had had a discussion with Dr L on the morning of the hearing in question in relation to the husband’s mental health, and cognitive capacity to understand the proceedings. Dr L indicated that based on his discussions with the husband he felt that the husband was able to understand what was going on in the proceedings.
Dr L was then briefly cross-examined by counsel for the husband. Dr L agreed that notwithstanding the entries about which he was examined, it was clear that the wife was trying to work out the difficulties with her husband, whatever they might have been. Dr L also agreed that he prepared a report in relation to the husband’s health dated 26 April 2009.
The wife further asserts that documents produced in response to a subpoena to the Department of Community Services also corroborates her allegations of family violence. The Department’s file for the child [S], known as [S], was tendered in evidence and became exhibit W5.
I admitted this document into evidence, subject to matters of weight. Counsel for the husband had strongly submitted that each of the entries relied on by counsel for the wife needed to be critically scrutinised with a view to assessing its weight. Counsel for the husband pointed out, for example, that there were observations and comments in the DOCS file that were opinions, and sometimes hearsay on hearsay. The document was clearly relevant, but I accept that the weight to be given to any individual part of it depends on the cogency of the evidence given its context as a business record. I refer to this evidence in reverse chronological order.
There is a document entitled “Investigation Summary” that sets out details of an investigation conducted on the 11th of August 1995. It is clear from the context of this document that there was an allegation that the husband behaved abusively towards the daughter [S]. Under the subheading of relevant history the entry states: “There has been a number of previous notifications for this family dating back to May 1991. These involved physical and verbal abuse by father to all daughters and mother”. The document contains a number of statements of opinion. I am not prepared to rely on these statements in the course of the present decision. I am prepared to take into account records of statements made by the husband. For example under the subheading “risk assessment” it says: “Mr Kucera has stated that his oldest daughter left home at 18 because he didn’t want her living with someone before marriage. He stated that his middle daughter left home at 16 because she had a boyfriend who was Chinese and he told her not to mix with them, he told her that she can only mix with white people. Mr Kucera will see neither of them and forbids his wife or remaining daughter to have anything to do with them”.
There is another investigation summary dated 19 April 1995. The narrative refers to the child [S] advising the writer that she had run away from home on 3 separate occasions in the last month and that her father (the husband in these proceedings) had slapped her across the face. She feared physical violence if she returned home. The child [S] reported that on 7 April 1995 her father started screaming uncontrollably and this continued for several minutes.
There is another investigation summary dated 19 May 1991. The narrative indicates that both the husband and the wife were interviewed and that Ms Kucera denied her husband had ever physically abused her or the 2 children, [S] and [L]. She said that he did hit [V] in March as she left home without informing them and stayed late until 12 or
1 o’clock in the morning. Mr Kucera indicated in relation to physical abuse on [V] that he felt sorry for what he did in that time but he was so upset and had lost his temper. Now [V] was gone and he did not want to hear anything about her.
The same investigation summary refers to an interview with [L] and [S] on their own. Both denied physical abuse by their parents. They said they would only get a little smack if they were naughty and they felt it was fair. [L] and [S] appear to be well looked after and they appear to be close to their father. Both of them state that their parents are very nice and understanding. Neither would comment on [V] leaving home. [S] and [L] said the information the department received that they found their mother bleeding and locked up in the bedroom was not correct.
As part of the same investigation summary there is note that on 30 May 1991 the child [V] went to the office and provided the following information. Her father is very abusive and violent towards the family. She is afraid for the safety of her 2 sisters, [L] and [S]. Her mother has been abused regularly by her father. The whole family has learnt how to present themselves to outsiders as if everything is normal within the family. [V] said that she would like to have the care of her sisters if they are to be removed from the family.
At the conclusion of the report there is a statement that [V]’s information could not be confirmed and that it appeared that [V] was the one making notification to the Department. It also appears that she is very angry with her father and tried to use our department to get her family into trouble. [S] and [L] are well cared for and there is no concern existing in the family.
The evidence above has been set out in reverse chronological order. It is apparent from the 29 May 1991 investigation summary that the Department had dismissed the concerns that apparently had been expressed about violence in the family by the oldest child [V]. Of course the documents produced by the department need to be considered in the context of the later investigation summaries that create the impression that life in the household was far less tranquil than the first investigation summary indicates. Moreover, the first investigation summary needs to be understand in the context of the broader evidence in this case, including from other independent sources.
I have already made some observations about the husband’s evidence in relation to family violence under the heading Credit Issues. I expand on that here. Counsel for the husband was given leave to lead evidence-in-chief from the husband to provide evidence in response to the wife’s allegations about violence. Counsel systematically put each of the allegations about violence directed to the wife that are referred to above. The husband systematically denied each and every allegation.
In response to the allegation that the husband stopped the wife from having friends at home, a document was tendered listing visitors to the home, that became exhibit H1. It lists eight persons, three of whom are clearly relatives or married to a relative. The wife’s allegation about visitors to the home is contained at paragraph 37 of her affidavit. It bears close examination. I am satisfied that exhibit H1 goes nowhere near undermining the wife’s evidence set out at paragraph 37. It is inherently unreliable in any event. The wife’s affidavit was filed 27 April 2009. The husband had sufficient time to actually call these witnesses to support his contention if he wanted.
In response to the allegation that the husband was violent towards the children the husband denied using his fist but agreed he occasionally gave them “a little smack on her bum or face”. This he would do if the children needed “attention” ie to help them grow up “to be decent honest person and respecting everyone”. He denied ever threatening the children with a knife, or stabbing [V] with a knife, but he agreed that he did hit [V] with a stick “on the bum” after she had run away one night. The husband asserts that the wife agreed with this punishment. The husband denied striking the children with a belt, pots and pans, and a hose. He denied the incident involving dog faeces, the pet lamb etc.
The husband agreed, however, that there was a time when he observed the wife to have swollen black eyes. He explained that this was caused by a sheep hitting the wife’s head. He explained that at the property where the [company materials] is stored there were four old sheep to eat the grass. The husband and wife were herding the sheep. He says he heard her call “come here, come here”, and the next thing he saw was that she emerged from behind a shipping container “full of blood” and said “they hit me right in the forehead between the eyes and forehead”. The husband denied that he inflicted these injuries on the wife.
In cross-examination about this incident the husband confirmed that the photos comprising exhibit W6 accurately depicted the injuries sustained by the wife in this incident, though he did not know how these came to be taken. When confronted with Dr L’s evidence about this incident he said that “she never said to the doctor sheep hitting her, probably she has said blaming me, I hitting her, but I never do that”. He was asked whether there had been an argument on the day.
I extract the relevant part of the transcript (transcript p48 lines 5-47):
Mr Kenny: Did you and your wife have an argument, Mr Kucera, on the day that she was attacked by the sheep?
Mr Kucera: We had the argument about I like to take her to the doctor to see – to show to the doctor what happened. If she dies I will be behind the bars for all my life. I can’t explain to no one sheep hitting her.
Mr Kenny: Mr Kucera, simple question. Did you and your wife on the day she was attacked by the sheep, did you and her have an argument?
Mr Kucera: Afterward, no
Mr Kenny: Can you – let’s assume that tomorrow when we talk to Dr L that he confirms that his notes indicated that your wife complained that she was assaulted by you on 21 September 1992?
Mr Kucera: Absolutely not. That not true.
Mr Kenny: What I want to ask you is, would you have any explanation, Mr Kucera, as to why the notes might say that?
Mr Kucera: I don’t know what she said to the doctor but if she said to the doctor whether sheep hitting her, I know that tomorrow will be Mr M come for witness, he will explain the things.
Mr Kenny: We might ask Mr M why he took the photos.
Mr Kucera: I see the photos. That is the one from the sheep. That is it.
Mr Kenny: I see. And the doctor’s notes say, Mr Kucera, this:
Patient forced to move out of the house.
Did she move out of the house because of the sheep attacking her?
Mr Kucera: No, what for? She was sick (indistinct).
Mr Kenny: The notes say:
Chased out – knife.
On 21 September 1992. Domestic violence.
Mr Kucera: Answer no.
In the evidence referred to above the husband refers to Mr M, the wife’s first cousin, who swore an affidavit in support of the husband’s case on 17 April 2009. In short Mr M’s evidence is that he was a regular visitor to the home between 1971 and 1998, never observed family violence, and formed the impression that they were a happy couple. At paragraph 7 of his affidavit he states:
7. On one occasion I observed [Ms Kucera] had a bruised face. She said to me “I was trying to catch a sheep in the yard and when I tried to grab his front legs he ran straight into my face with its head”. “I am in a lot of pain”.
Based on the affidavit of Mr M one would have thought that the Kucera household was a happy, tranquil one.
Mr M’s cross-examination presented a different picture, however. He was well aware of problems with the children including one running away at midnight. He had to bail the husband out of gaol once because he had been “hard on the kids”. The husband told him that he had “slapped [V] a couple of times in the face”. He was presented with the photos being exhibit W6 and agreed that these are the injuries he saw on the wife, but he denied taking the photos. He was asked about what the wife said to him (transcript p163 lines 30-36):
Mr Kenny: And did you ask what happened to her?
Mr M: Yes. I come with the ladies called [Ms M], my friend – lady, we come there and I say to her, “oh, what’s happened to you?” She said to me, “Oh, we wanted to catch the sheep in the yard, wild one, we want to kill them for the food”, because she’s wild didn’t want to catch them. And she said, “We chased them and she wanted to catch them by the front legs,” because she’s horned – hit her straight in the face and knock her down. That’s what she told me.
Mr M then indicated in cross-examination that it was a female sheep that hit the wife, then changed his mind and said it was a male sheep. It is interesting to note the differences in the evidence of the husband and Mr M – the former refers to “old sheep”, the latter to “wild sheep” one of which was to be killed for food. The following exchange then took place in cross-examination (transcript p.165 lines 31- p.166 line 30):
Mr Kenny: When you saw [Ms Kucera] with the bruised face; did she have any other injuries besides that?
Mr M: I didn’t – I just ask her what’s happened to your face? And that she told me what I tell you before. That’s all that I know.
Mr Kenny: I want to suggest that the day you saw these injuries and that you took [L], [S] and Ms Kucera over to [O]?
Mr M: They have been – plus they have been for (indistinct) she might have run away from the husband.
Mr Kenny: yes?
Mr M: not for that time.
Mr Kenny: A different time?
Mr M: Different time. She might have run away.
Mr Kenny: And you took her to [O]?
Mr M: Yes
Mr Kenny: And that was [Ms M]’s place?
Mr M: That’s right.
Mr Kenny: And how many times did you take her to [O] when she needed to run away?
Mr M: She been…
Mr Kenny: Or wanted to run away?
Mr M: Overnight – I think so, one or two nights, she been there. I couldn’t record it how many nights she been and then they sort it out and she go back. She planning that for long time to leaving to run away.
Mr Kenny: Long time before the final separation?
Mr M: You can say that.
Mr Kenny: Well, do you say that?
Mr M: That she planning?
Mr Kenny: Yes. But I am just interested in these times when she ran away, which is your words, to [O]. Okay. It happened once or twice that you can recall?
Mr M: That time she wants to go to [O] she go there.
Mr Kenny: Who took her there?
Mr M: She come.
Mr Kenny: She just came on her own?
Mr M. Yes.
Mr Kenny: And you didn’t take her?
Mr M: She and the kids; she come.
Mr Kenny: Right. With the kids or just by herself?
Mr M: No, bring the kids.
Mr Kenny: And they stayed there?
Mr M: They stayed.
Mr Kenny: And they left Mr Kucera in Property F?
Mr M: Yes.
It is curious that he does not refer to this separation in his affidavit, or to the role he played, directly or indirectly, in sheltering the wife and children. Mr M was then pressed to provide more information about why the wife wanted to leave the home. At this point in his evidence he became quite evasive (transcript p.166 line 39-167 line 22):
Mr Kenny: And were you living there at [O] too?
Mr M: I live in somebody else’s place but that she’s been my lady friend.
Mr Kenny: And did they tell you – did Ms Kucera tell you why she wanted to go and stay at [O]? Did something happen that would make her want to go there?
Mr M: She - a lot of things, I believe, her but I know that she’s good actor.
Mr Kenny: Yes, but what did she say?
Mr M: And I – I should know a long time ago I never been involved because she’s a good actor.
Mr Kenny: Okay. And just tell us when she was doing this acting; what did she say?
Mr M: She lot of time she made the story which one doesn’t – doesn’t act. Doesn’t act. My wife never talk to her, never nothing because she is not –
Mr Kenny: I want to know what she said. I don’t want –
Mr M: Well, I don’t know. This been long time ago. I don’t know what she said.
Mr Kenny: Well, you remember her being a good actor?
Mr M: No, no I don’t remember.
Mr Kenny – No, Mr - ?
Mr M: I have a lot of things in – in else. I don’t remember what she said.
Mr Kenny: Well do you remember her being a good actor?
Mr M: Oh, yes.
Mr Kenny: Yes?
Mr M: She’s a good actor.
Mr Kenny: What did she do?
Mr M: Yes, because she is a lot of things make the story which one doesn’t act.
Mr Kenny: Which story?
Mr M: A lot of stories.
Mr Kenny: Tell us one?
Mr M: Husband doing me this, husband doing me this. Never. Nothing. Nothing happened.
Mr Kenny: Well, you didn’t see it?
Mr M: I didn’t see it.
Mr M’s affidavit makes no reference to any of these events. He then gives evidence about another event when the wife complained to him that she was scared to go home (transcript p167 line 24-35).
Mr Kenny: You weren’t there?
Mr M: I once my wife, we met her in the street, she say “I am scared to go home, husband will get me”. We go – she said, “you go first – your wife you go first home and then I will come back later”. We knocked on the door. He cooked the dinner. She comes in 10 minutes later, “hello, hello, everybody” like everything okay. We have singing nicely – everything else. My wife say “what’s wrong here? Who is - she make us even as we come up here and there’s nothing there. Nothing there. Her husband is cooking the meal for her till she come home and she’s talking about she’s scared of him to come home.” Come on. And my wife after that say, “[Mr M], I am not come any more near to this family because she is big – sorry, you can go because you are family, I am not go near any more because she is not – she might story which one (indistinct).”
From the way Mr M gave evidence about this event, it is clear that it was a significant one for him. Even he says that from this point onwards his own wife said to him that she would not return to the Kucera household. I find the absence of any reference to this event in his affidavit to be significant.
The evidence of Mr M is completely unreliable. He was evasive in cross-examination. His affidavit evidence, and evidence in cross-examination is quite inconsistent. The picture of domestic bliss and tranquillity in the Kucera household presented in his affidavit stands in strong contrast to the impression created of a troubled household in his cross-examination. Mr M clearly knows more than he was prepared to disclose to the court. He appears to have actually provided some refuge to the wife and at least some of the children during the troubled marriage. Nonetheless he clearly has a friendship with the husband and this has contributed to him being a reluctant witness. On balance
Mr M’s evidence tends to corroborate the wife’s evidence more than it corroborates that of the husband.
Finally it is important to comment on the cross-examination of the three children. Each requested that they not have to disclose their address, a request which was granted. Each was impressive in the manner in which they gave their evidence. It was put to each of them in cross-examination that there was a remarkable similarity in their evidence, the strong inference being that they had collaborated in preparing their evidence. It was put to each of them that the events referred to are not accurately reported, and are exaggerated and untrue. Each of them indicated that they had not seen each other’s affidavit. Each suggested in their own way that they had experienced the same events so that it was not coincidental that their evidence was similar.
I accept the evidence of the wife, Dr L and the children about the sustained family violence experienced during the marriage. I do not accept the evidence about these issues given by the husband or Mr M.
The evidence about family violence in this case falls into the category of coercive controlling violence as described by Kelly and Johnson[1] or abusive controlling violence as described by Jaffe and Johnston[2]. Coercive controlling violence is an ongoing pattern of use of threat, force, emotional abuse, and other coercive means to unilaterally dominate one partner and induce fear, submission and compliance in the other. Its focus is on control by e.g. intimidation, emotional abuse, isolation, minimising, denying, blaming, using children, asserting male privilege, economic abuse, coercion and threats. It has also been described as intimate terrorism, a term that seems particularly appropriate on the facts of this case. There was no evidence to indicate that the wife resisted, or that the violence was situational, or instigated by the separation.
[1] Kelly, JB, Johnson, MP, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ 46 Family Court Review 2008
[2] Jaffe, PG, Johnston, JR et al, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ 46 Family Court Review 2008
Informal property settlement
Both parties seem to agree that their final separation was in December 1998. The wife asserts there were two prior separations. The husband says there were none. Curiously both assert in their own way that they had entered into informal property settlements before 1998, which involved the transfer of properties and payments of money. It was originally a key part of the wife’s case, but by closing submissions its significance had almost disappeared. The husband did not press any argument about informal property settlement. Both seem to provide as at least one of the reasons for the transactions in question taking place pressures from creditors of the business they were then operating at the time. This pressure led to the husband’s bankruptcy, and subsequent proceedings in the Supreme Court of New South Wales and the Federal Court of Australia against the wife.
From the wife’s perspective her evidence, whilst at least tacitly acknowledging issues with creditors, emphasises her desire to settle property matters with the husband. This is consistent with her evidence of several separations before the final one in 1998. The fact is, however, that whatever the parties’ intentions there was no formal property settlement under s.79. Whatever either party might have represented in the bankruptcy proceedings was the state of their marriage, the final separation did not take place till December 1998. And whatever payments may or may not have been made to each other during the marriage, the clear focus of s.79 proceedings is on the property of the parties at the date of the hearing. In this case, of course, separation took place over 10 years ago so there must be an appropriate focus on the financial affairs of the parties at the date of separation. That raises potentially complex issues about post-separation dealings. I therefore do not consider that I am required to make findings about whether or not the parties to these proceedings had entered into an informal property settlement before December 1998 when they finally separated. For all practical purposes on the facts of this case, it is quite irrelevant whether they did or not. Alternatively the weight I would place on these transactions so many years after the event, in the circumstances of this case, is negligible.
Property pool
The husband contended for the following property pool:
List of assets Wife's value Husband’s value Ownership 1. Property R $435,000 $435,000 Wife 2. Property X $185,000 $185,000 Wife 3. Property Y $300,000 $300,000 Wife 4. Property F $300,000 $300,000 Wife 5. St George account $95 Wife 6. ANZ account $3,795 Wife 7. Wife's motor-vehicle $15,000 Wife 8. Household contents $15,000 Wife 9. Westpac account $466 10 ANZ account [D] Pty Ltd $5,636 Husband 11 Commonwealth Bank $5,150 Husband 12 1998 Nissan $300 $300 Husband 13 1987 Mazda $500 14 Husband's interest in [D] Pty Ltd Nil Husband 15 Household Contents $300 $300 Husband 16 Husband’s property in Croatia not known negligible Husband 17 Commodore motor-vehicle not known 18 Plant and equipment not known Husband Total $1,266,242
List of liabilities
19 Home mortgage $179,000 Wife 20 Mortgages on investment property $407,000 Wife 21 Car loan $34,600 Wife 22 ANZ Visa $10,584 Wife 23 NAB Visa $9,500 Wife 24 Citibank $7,674 Wife 25 ANZ Visa $22,000 Wife 26 ANZ Visa $9,293 Husband 27 NAB Visa $100 Husband Total
$679,751
Net Assets $586,591
List of resources 28 Superannuation $15,534 Wife 29 Superannuation E$5,000 Husband
The values of real estate are agreed but it is important to note that the properties at Property R, Property X and Property Y are held by the wife only, and were acquired post-separation. The husband does not assert as part of his case that he has made a contribution to those properties.
It is noticeable that there are a number of items, some of them relatively minor in nature, where the husband does not assert a particular value. In this situation I have no option but to accept the value asserted by the wife.
At item 8 the husband contends that the wife’s household contents are $15,000. This is consistent with the wife’s Case Outline Document. I intend to adopt that figure.
Item 17 is a Commodore motor vehicle. In the husband’s last financial statement he attributes a value of $13,500 to that. That should be the appropriate figure to use in the balance sheet. At item 18 the husband provides no information about plant and equipment but in his evidence he concedes that there is at least $3,000 worth of plant and equipment and accordingly that figure should be inserted there.
There are a number of relatively minor liabilities in respect of which I have few or no details, mainly belonging to the wife, but which I’m prepared to infer arose post-separation.
The evidence that I heard from the parties does not enable me to say whether there should be an add-back for legal fees. Apparently the husband cashed in his superannuation policy worth $5,000 to pay for legal fees so it is appropriate that this be kept on the balance sheet as his superannuation.
The wife asserts that the husband has not properly disclosed his interest in the business [D] Pty Ltd, or the extent of his interest in property in Croatia following his inheritance. For the reasons that I have set out above, in my discussion about disclosure issues, I agree. Accordingly these items should remain on the balance sheet as items belonging to the husband, but on the basis that the value is unknown.
One of the difficult issues in relation to the property pool, and indeed to assessing contribution, is the fact the wife does not lead evidence about what she did with the Property C property after the date of separation. In cross examination she indicated that she sold it in 2001 though she did not say for how much. She then purchased a property at Property S that was then sold to purchase the Property R property.
In closing submissions the wife’s counsel submitted that the Property C property was valued at $130,000 based on a 1995 stamp duties valuation obtained by the parties. I do not accept that this document is a reliable indication of value at the date of separation in 1998. Thus counsel’s submissions about the equity in this property at separation are mere speculation. Likewise I do not accept that a 1994 stamp duties valuation of the Property F property is a reliable indicator of its value in 1998.
The evidence indicates that she now lives in the property at Property R that has a value of $435,000, is subject to a mortgage of $179,000 and accordingly has an equity $256,000. She has other properties obviously purchased after separation having a current agreed value of $485,000 subject to mortgages of $407,000 and thus with an equity of $78,000. The only other property is the Property F property which has an agreed value of $300,000, and which is unencumbered.
In a case like this where so much time has elapsed since the date of separation it would not be appropriate, in my opinion, to adopt a global approach. Indeed, I understood neither counsel to submit to me that that was the appropriate method to adopt in a case like this one. On the basis, therefore, that I proceed on an asset by asset basis it will simplify the relevant pool of assets considerably if I exclude, at this stage, any post-separation asset in respect of which there is no express or implied claim for contribution. This means I intend to exclude the [X] and [Y] properties and the mortgages attributable to them. This leaves the Property R property in which the wife now resides, and the Property F property in which the husband now resides. Whilst the focus of this litigation was very much on the Property F property the contribution argument must apply to all of the assets held at the date of separation and thus, to that extent, I’m prepared to at least imply a claim by the husband to have contributed to the Property R property insofar as it is a reasonable inference to draw from the wife’s evidence that it was purchased using the sale proceeds of the Property C property.
However, I intend to exclude from the pool of assets all other items of personal property and saving and liabilities with the exception of the household contents of the wife, the husband’s interest in [D] Pty Ltd, the household contents of the husband, the husband’s property in Croatia, the husband’s Commodore motor vehicle and the plant and equipment. In relation to these items, there is I believe at least a strong inference on the evidence, if not express evidence, to indicate that these were either in existence at the time of separation or had as their source of acquisition assets available at the date of separation. All of the other matters that I have excluded appear to me, on the evidence, to have arisen in the post separation period.
Having done this the pool of assets is stripped down to a relatively modest pool as follows:
| List of assets | Value | Ownership | |
| 1. | Property R | $435,000 | Wife |
| 2. | Property F | $300,000 | Wife |
| 8. | Household contents | $15,000 | Wife |
| 14. | Husband's interest in [D] Pty Ltd | Not disclosed | Husband |
| 15. | Household Contents | $300 | Husband |
| 16. | Husband’s property in Croatia | not disclosed | Husband |
| 17. | Commodore motor-vehicle | $13,500 | |
| 18. | Plant and equipment | $3,000 | Husband |
| Total | $766,800 | ||
| List of liabilities | |||
| 19. | Home mortgage | $179,000 | Wife |
| Total | $179,000 | ||
| Net Assets | $587,800 | ||
| List of resources | |||
| 28. | Superannuation | $15,534 | Wife |
| 29. | Superannuation | $5,000 | Husband |
Before proceeding further to consider the question of contribution
I make here the observation that the equity in the Property F property is $300,000, and the equity in the Property R property is $256,000. It would be more relevant to know about the equity in these properties as at the date of separation but, of course, I am dependent on the parties to produce this evidence before the court. For whatever reason, just or otherwise, the parties to these proceedings waited almost a decade since separation to seek a final property settlement in accordance with the Family Law Act. The court is placed in the invidious position where it must now try to do what all the King’s horses and all the King’s men could not do i.e. put Humpty Dumpty together again. If there is any feeling of frustration in the parties about the imprecision with which this exercise is undertaken they need to remember that a court of law is dependent on the evidence that is put before it in order to make a determination under law.
Contribution
Whilst there is some considerable overlap in relation to the evidence of the husband and the wife about matters pertaining to contribution, where there is an issue, unless I state otherwise, I prefer to accept the evidence of the wife. This must inevitably follow as a consequence of the findings I have made above in relation to credit, and disclosure. At cohabitation the wife had no relevant assets and the husband had a half share in a property at Property W. This was sold about 2 years after cohabitation. The husband says that he realised $8000 from the sale which was used to purchase a property at Property M. The wife says that after the husband had repaid the amount he owed on the property or in respect of the property he had hardly anything left. The wife does not refer in her evidence to the purchase of a property at Property M. I tend to accept the husband’s evidence in this regard because of the detail he provides and the fact that it was purchased indicates that there must have been come equity which, in all likelihood did come from the sale of the Property W property. At the end of the day, having regard to the length of the marriage and the very early stage of these transactions in terms of the history of the parties, not much turns on this.
The property at Property C was purchased jointly, the husband says in 1977, the wife says in 1975. They agree on a purchase price of $18,000. She says it was purchased with joint savings but he produces documents that satisfy me that they in fact borrowed $13,000 out of the $18,000 purchase price. The husband gives detailed evidence of the rather extensive work that was conducted on the property and in this regard the wife appears to not dispute the same. There is also agreement that they spent $6,000 purchasing a potable fibro home that was located on the Property C property.
Both parties agree that from 1976 or 1977 they resided with the wife’s parents in [S] for a period of 5 or 6 years. This appears to have been rent free accommodation. The Property C property was leased out. The husband says the Property M property was leased out.
The parties agree that in 1982 they purchased Property F for $52,000 primarily using the compensation claim proceeds of the wife which was about $42,000.
The husband then says that in 1983 the property at Property M was sold and the sale proceeds used to establish the business known as
[M] Pty Ltd. In cross-examination the husband did give oral evidence about this and I am prepared to accept that this took place. As at the sale of Property M, therefore, the husband and the wife owned the property at Property C as well as Property F. They continued to own these properties up until the date of separation in 1998.
I am satisfied that the evidence indicates that the husband worked full-time throughout the course of the marriage and continued to derive an income even during the period of his bankruptcy. Indeed, the bankruptcy appears to have had little impact on the husband’s earning capacity as this appears to have been channelled through other entities.
I am also satisfied that throughout the marriage the wife worked either full-time, part-time, or in the home as principal homemaker and parent. Putting aside the Kennon claim, and the issue of non-disclosure, even though the husband and the wife made different types of contribution I am satisfied that it is just and equitable that after a 26 year marriage their respective contributions be assessed as being equal.
In this respect I am not prepared to differentiate between the husband and the wife as to the weight to be given to the contribution they each made in the earlier years of the marriage – by the husband towards Property W, and by the wife towards Property F. The myriad contributions that each of them made over the many years thereafter makes it impossible to differentiate between them.
The wife asserts that she made a number of payments to the husband in the post-separation period. Insofar as these payments are asserted to be pursuant to an informal property settlement, there is insufficient evidence to enable me to make findings that would result in an adjustment in the wife’s favour for post-separation contribution. The evidence about this alleged informal property settlement was far from satisfactory, and even if payments were in fact made by one spouse to the other, I am not satisfied that it amounts to a contribution for s.79(4) purposes. In all likelihood it was matrimonial funds that changed hands – if any money was in fact paid at all.
The wife asserts that on 17 November 1999, just under a year after separation, she paid $20,000 to the husband’s trustee in bankruptcy to settle the proceedings brought by the trustee in the Supreme Court Equity Division. I am satisfied this in fact took place. Whilst the wife’s case is that this is a post-separation contribution on her part, there is no evidence to explain how she acquired this money. I am asked to infer it is her contribution, but I am not prepared to do so in the circumstances of this case. It is possible she used money available to the husband and the wife at separation in order to make this payment.
At separation the husband also had his business including its plant and equipment, the value of which is not known today. Counsel for the wife submits that the formwork alone had a value of $140,000 based on the husband’s own figures. I do not regard this evidence as reliable enough to make a finding. Given the uncertainty in this case about the extent of the husband’s financial disclosure, I believe it is better to treat this as part of a possible s.75(2)(o) adjustment for non-disclosure.
The husband has remained in occupation of the Property F property since 1998. Whilst the evidence indicates that he has paid some of the expenses and outgoings relating to this property, I am not satisfied that he alone paid all costs associates with the preservation of this property. At least for a period of time the wife paid these outgoings or some of them. Clearly, however, the husband’s occupation of the home was a significant benefit to him.
The Property R property is owned by the wife who has solely enjoyed any income derived from it, but has also been solely responsible for any expense or debt attributable to it. Its genesis was from the sale proceeds of the Property C property. The wife’s evidence in cross-examination indicates that the Property C property, and its successors, were used to secure borrowings used to acquire the wife’s other properties in [X] and [Y]. This is a significant benefit to the wife.
Counsel for the wife submitted that the post-separation contribution significantly favours the wife. I do not agree. There is not enough evidence to satisfy me of this. Based on the available evidence it seems to me that both enjoyed equally the benefit of assets owned at separation – the husband passively, and the wife actively.
What remains is a finding of equal contribution, save for the Kennon adjustment. I will now proceed to consider that claim.
In relation to the assessment of the Kennon claim of the wife, her counsel submitted that it should be assessed at between 10 and 15%. Counsel submitted that the Kennon claim had been particularised and proved in an uncommon way for these types of cases. Counsel submitted, and I have already found, that the evidence indicates that the husband’s conduct amounted to coercive controlling violence.
Counsel for the husband submitted that the Kennon claim needed to be looked at critically, based on the evidence, with no room for inference and in any event in the very conservative manner mandated by the Full Court in its decision. He submitted that it could under no circumstances be assessed at more than 5%.
I agree with counsel for the husband that the Kennon claim and its assessment needs to be approached conservatively for the policy reasons that are clearly articulated in the Full Court’s decision. On the facts of this case, however, even on a conservative application of Kennon, the evidence is so clear that an assessment in the range sought by the wife is appropriate. The evidence of family violence is unequivocal. The physical and mental impacts on the wife are evident from her evidence, that of her daughters, and the evidence of Dr L. I do not accept the submission that there is no link between the medical evidence and the wife’s complaints of family violence perpetrated by the husband. Dr L’s notes demonstrate the proximity between the acts of violence and the medical conditions suffered by the wife. There is no other plausible explanation for the wife’s medical conditions but for family violence. I have categorically rejected the husband’s fanciful concoction that a sheep caused the wife’s injuries on one occasion.
But counsel for the husband’s considered submissions went further and suggested that even if there was family violence, which he conceded was totally inexcusable if it occurred, there was insufficient evidence to demonstrate that the wife’s contribution was rendered more arduous. Indeed counsel referred me to my own decision in Bingham & Bingham [2009] FMCA fam 99 where I stated at paragraphs 47 and 48:
47. There is an issue of causation in any Kennon-type claim. The claimant must establish the "course of violent conduct by one party towards the other during the marriage". I am prepared to accept that the evidence, on the balance of probabilities, satisfies me of this. However, the Full Court goes on to say that such course of violent conduct is "demonstrated" to have had a certain impact. The use of the word "demonstrated" clearly illustrates the need for the claimant to establish that a certain impact is causally linked to the violent conduct. The wife's evidence does not so satisfy me. Even if she were to convince me to the requisite standard of the impact on her contributions, I could not be satisfied that this was attributable to family violence because her medical condition was much more complex than to allow that simple causative conclusion.
48. In any event, the Full Court in Kennon goes on to refer to a course of violent conduct which is demonstrated have had "a significant adverse impact upon that party's contributions to the marriage". There is simply no satisfactory evidence adduced on behalf of the wife which could satisfy me about this, on the balance of probabilities. It is left to mere inference. I am left to infer that because of the husband's course of violent conduct her contribution was made more difficult, or significantly more arduous. I do not think there is any room for inference in a Kennon-type claim. Clearly the Full Court was seeking to limit these types of claims and to avoid opening the floodgates. The Full Court emphasised that these principles apply to a "relatively narrow band of cases". The evidence before me in this case does not establish that there was any adverse impact on the wife's contributions, and even it if did, because of the wife's complex psychological and psychiatric condition, I could not be satisfied that the conduct caused any impact on that contribution.
The present case is completely different. In Bingham the family violence could not be characterised as coercive controlling violence as is clearly the case here. In Bingham there was no evidence of an ongoing pattern of controlling and abusive behaviour, but in this case there is. In Bingham the medical evidence was both quantitatively and qualitatively inferior to that presented in this case. In this case, moreover, the evidence of the causal link between the violence and the contribution rendered more arduous is much stronger. In Bingham I clearly expressed reservations about drawing inferences in Kennon type cases but I acknowledge now that perhaps, in cases where the family violence is both serious and sustained as it is in this case, there is scope for drawing limited inferences about contribution being rendered more arduous. I note also that in Bingham my attention had not been drawn to the Full Court’s decision in Doherty (1996) FLC 92-652 where Baker J, with whom Fogarty and Hannon JJ agreed, made comments at p.82683 suggesting that the drawing of an inference about contribution being rendered more arduous might be appropriate in some cases.
In any event in this case I believe there is adequate evidence to establish the causal link between the family violence and the wife’s contribution being rendered more arduous. This evidence is that of the wife, her daughters and that of Dr L. I record, however, that if there is any doubt, I would be prepared to draw the requisite inference on the facts of this case.
I record another considered submission by counsel for the husband in this context. He submitted that the evidence of the wife’s activities and medical condition after separation indicated that she bore no long-term impacts of family violence. I accept that this is a correct summary of the evidence. Indeed from one perspective the wife seems to have thrived socially, economically and even financially since separation. Whilst she has some health issues there is no evidence to link these back to family violence in a marriage that ended in 1998. It is almost as if when the wife was freed from a violent relationship she was able to bloom and reach her full potential. It is also interesting to observe how successful each of the children appear to have been in their own lives despite the difficulties they experienced in the family home when they lived there. But do any of these matters have an impact on the assessment of the Kennon claim? The answer is clearly no. In my opinion Kennon principles operate retrospectively, and not prospectively. In other words the Full Court in Kennon seems to have emphasised that it is a contribution-based assessment, not a future-needs related assessment. The issue is to what extent was contribution during the marriage rendered more arduous, not to what extent family violence during the marriage creates future needs. Kennon is about contribution under s.79(4), it is not about assessment of future needs under s.75(2). That is not to say that family violence during a marriage could not also create the basis for a s.75(2) adjustment, but the rationale for this is s.75(2), not the Full Court’s decision in Kennon. Thus the fact that the wife appears to have prospered after the end of a violent relationship does not effect the assessment of contribution during the relationship.
Assessing the extent to which contribution has been rendered more arduous is problematic. The range presented by both counsel is 5 to 15%. The pool of assets is a relatively small one - $668,334 including superannuation. Five percent is just over $30,000. Fifteen percent is just over $90,000. At a human and moral level it almost offends one’s sense of decency to say that even $90,000 is adequate recompense to the wife for the years of violence that she endured whilst continuing to make contributions under s.79(4). Indeed this raises the question of what is the rationale or principle that informs the assessment of contribution in Kennon cases? Dewar expressed the problem in these terms:
Is ‘contribution’ a satisfactory basis for taking domestic violence and other forms of undesirable matrimonial conduct into account? Although the concept has an intuitive appeal as a basis for distribution, and as Patrick Parkinson has pointed out, has its origins in the case law on implied and resulting trusts, the concept of contribution is quite opaque. It offers no independent rationale for distributing property beyond itself – in this respect it is quite unlike other jurisdictions overseas that either rely heavily on more explicit concepts of future need (as in England and Wales) or of presumptions of equal sharing based on some notion of partnership. The opacity of the concept of contribution means that it becomes hard to identify precisely what is going on when a Court says that violent (or other) conduct has an effect on a party’s contribution in a way that is relevant to property distribution – is it a matter of compensation for injury, punishment for misconduct or something else? Simply restating the conclusion in the language of contribution does little to advance things. So, I suspect we need to go back to basics a bit and ask – what are we doing when we make adjustments for violent (or other) conduct: compensating, punishing, deterring, censoring or insuring against future need? And what should we be doing?
This is likely to be a controversial task. Perhaps, after all, one of the benefits of the current law is that by allowing us to use metaphors that we all think we understand, such as ‘contribution’, we can persuade ourselves that we agree with each other more than we really do. Added to that is the difficulty of drafting legislation that ‘merely’ clarifies the law – clarification often entails change, wittingly or not.
Even so, there may be a case for trying to codify and clarify. The majority judgment in Kennon leaves a number of loose ends trailing that could usefully be tied up by amending legislation, and in the process offer guidance to litigants and their advisers on what conduct is relevant, as well as when and how. It could also send out a clear message that violence in families will not be tolerated, an educative function that legislation in family law is increasingly called on to play.[3]
[3] J Dewar, ‘Family Violence and Property Distribution: Where Now?’ Conference Handbook (2000) (proceedings of the 9th National Family Law Conference, Sydney) Family Law Section, Law Council of Australia and Television Network at 293 - 298.
Dewar goes on to refer to the Family Law Council and its Discussion Paper on “Violence and the Family Law Act: Financial Remedies”[4].
[4] Family Law Council, ‘Violence and the Family Law Act: Financial Remedies’ (Discussion Paper, Family Law Council, 1998).
In my opinion, despite the valid criticisms of Dewar, the only principle that can inform the assessment of contribution in Kennon claims is the principle of contribution as set out in s.79, and as understood in the cases. Section 79 is not about compensation, punishment, deterrence, censoring conduct or insuring against future need, in the context of a Kennon claim. Section 79 is about making “such order as [the court] considers appropriate” (s.79(1)) that is “in all the circumstances… just and equitable” (s.79(4)). The Act itself permits of no other interpretation or approach, notwithstanding the opacity to which Dewar refers. Accordingly, I have a discretion and, indeed, quite a wide one. I have no doubt that the 15% submitted by counsel for the wife is within that discretion. Indeed, hypothetically, if counsel had submitted for a higher percentage on the facts of this case, it may well have been appropriate. In assessing whether the adjustment is 5% or 15% or anything in between I am not influenced by the abhorrence I feel for the husband’s conduct, or by a desire to compensate the wife, or punish the husband, or deter other violent spouses, to censor publicly or to insure against future need. What I am doing, however, is trying to assess (as a percentage of the value of the assets in question) the extent to which the wife’s contribution was rendered “significantly more arduous than they might to have been”. This process is as subjective and discretionary as any other discretionary exercise of power. I take into account the length of the period of family violence in this case – the entire marriage. I take into account its frequency and nature – it was coercive controlling violence that was pattern of abuse. I take into account the strength of the evidence of family violence and its impacts on the wife and the contribution she made in the marriage. All of these matters justify an assessment of 15% in the wife’s favour.
Conclusion about contribution
Having regard to all the matters set out above, I conclude that contribution should be assessed as to 65% in favour of the wife.
A section 75(2) adjustment?
Counsel for the husband submitted that the husband’s health, age and limited earning capacity compared to the wife mean that he should receive a s.75(2) adjustment in his favour. The husband is 66 years old and is thus 12 years older than his wife. His medical evidence consists of a report dated 26 April 2009 from Dr L. This indicates that he suffers from multiple chronic illnesses including Diabetes Mellitus.
Dr L states that “age has crept up on him and this has invariably affected his ability to continue with hard physical laborious type work”. This evidence was not seriously challenged in cross-examination of Dr L. The difficulty for the husband is that his own evidence about his capacity to work stands in strong contrast to that of Dr L. As set out earlier in these reasons the husband is still clearly working, and the extent of this is not fully disclosed to the court. The husband gave evidence, quite boastfully I thought, about how he could do the work of 2 men. His presentation and demeanour in the witness box left me with little doubt that he could.
The wife is younger and in better health compared to the husband. Though I have real doubts about how much the husband is actually earning, he is probably not earning as much as the wife ($1730 per week). Even if the husband is working now, I accept that his capacity for gainful employment is less than that of the wife’s. On balance an adjustment under s.75(2) is appropriate and I assess the same at 2.5%.
I have made clear findings in this case about the husband’s credit and non-disclosure. I accept the submissions of counsel for the wife that the husband has failed to disclose to the court his true earning capacity, his income and assets. I find that he does have an interest in an estate in Croatia. I find that he does own plant and equipment (probably formwork) associated with a business that he continues to operate. I do not know what the value of these items are and accordingly prefer to make an adjustment in the wife’s favour under s.75(2)(o) in this regard. The pool of assets in this case is a small one – about $608,000. In this case 10% is inadequate as it would only represent approximately $60,000. I am prepared to allow a 15% adjustment in the wife’s favour under s.75(2)(o) arising out of the husband’s non-disclosure.
Conclusion about s.75(2) adjustments
Having regard to all of the matters set out above, I conclude that the net s.75(2) adjustment in favour of the wife should be 12.5%.
Just and equitable order?
I have assessed contribution in favour of the wife at 65%. I have made a further adjustment in her favour under s.75(2) of 12.5%. This means that, subject to the justice and equity of the orders I make, the wife would receive 77.5% of the pool of assets as I have found it, and the husband 22.5% of the same. The net pool of assets consists of property $587,800 and superannuation $20,534. I propose to treat it as 1 pool of assets as the superannuation is quite a small percentage of the overall pool. The combined pool, therefore, is valued at $608,334. The parties entitlement would be as follows:
Husband
22.5%
$136,875
Wife
77.5%
$471,458
The husband sought the Property F property by way of alteration of property interests. The wife sought this property herself, in consideration of payment to the husband of $100,000. The husband has lived in this property since separation and considers it his own. A scenario that would enable him to keep the property is as follows:
Property F
$300,000
[D] Pty Ltd
Not disclosed
Contents
$300
Property in Croatia
Not disclosed
Commodore
$13,500
Known plant and equipment
$3000
$316,800
Less entitlement
$136,875
Payment to wife
$179,925
Having regard to the matters set out in these reasons I will give the husband the opportunity to raise $179,925 to pay to the wife by way of property settlement, in which case she would need to transfer the property to him. I intend to allow him 42 days from the date of these orders to make this payment.
If the husband cannot make this payment, however, as his entitlement pursuant to this judgment is $136,875 and he already has known assets to the value of $16,800 this means the wife would need to pay the husband $120,075 in return for his vacating the property. The wife is confident that she can make this payment, and my impression of her financial affairs is that her confidence is justified. If she cannot make this payment to the husband within 28 days following the expiration of the period of 42 days I gave to the husband, the matter can be relisted before me for further orders.
Is this just and equitable from the husband’s perspective? I conclude that it is in the circumstances of this case particularly in view of the findings I make about non-disclosure and credit. Indeed it would be difficult for him to assert it is not just and equitable in view of the findings I have made against him.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 2 October 2009
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