Lawson and Lawson
[2004] FMCAfam 674
•25 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWSON & LAWSON | [2004] FMCAfam 674 |
| FAMILY LAW – Property – wife claims Kennon adjustment – wife claims waste as a result of gambling and excessive alcohol. Family Law Act 1975 In the Marriage of Lee Steere (1985) FLC 91-626 |
| Applicant: | KATHLEEN PATRICIA LAWSON |
| Respondent: | GEORGE RUSSELL LAWSON |
| File No: | PAM 3601 of 2003 |
| Delivered on: | 25 November 2004 |
| Delivered at: | Parramatta |
| Hearing Dates: | 28 October, 8 & 9 November 2004 |
| Judgment of: | Sexton FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Schroeder |
| Solicitors for the Applicant: | F.D. Hammond & Associates |
| Counsel for the Respondent: | Mr D. Roberts |
| Solicitors for the Respondent: | George West Solicitor |
ORDERS
That within 6 calendar months of the date of these orders the husband pay to the wife by way of property settlement the sum of forty five thousand five hundred dollars [$45,500.00] payable as follows:
(a)The sum of $15,000.00 within 1 calendar month;
(b)The sum of a further $15,000.00 within 3 calendar months;
(c)The balance within 6 calendar months.
That within 6 calendar months of the date of these Orders the following occur simultaneously in relation to the former matrimonial home at 9 Dino Close, Rooty Hill in the State of New South Wales [“the home”]:
(a)The husband do all acts and things and execute all documents necessary to transfer to the wife the whole of his right title and interest in the home.
(b)The wife discharge the loan secured by way of mortgage on the home to Wizard Home Loans [the home loan].
and thereafter the wife indemnify and keep indemnified the husband in relation to the mortgage and other outgoings on the home.
In the event the wife fails to discharge the home loan or is unable to discharge the home loan by the due date in accordance with Order (2) herein, the husband and the wife shall forthwith do all things necessary to effect a sale of the home to be sold by private treaty at a price agreed between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale the proceeds to be distributed in the following order and priority:
(a)In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
(b)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(c)In discharge of the loan secured by way of mortgage to Wizard Home Loans registered on the title of the home;
(d)In payment to the wife of the balance.
In the event the home has not been sold by or before a date three (3) months from the date Order (3) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the home upon the following terms:
(a)The auctioneer shall be a real estate agent;
(b)The reserve price shall, unless agreed between the parties, be as proposed by the Auctioneer;
(c)Upon completion of the sale the proceeds shall be distributed in accordance with Order (4) herein.
That pending the transfer of the husband’s interest in the home, or the date of sale of the home in accordance with these Orders, the wife shall have the exclusive right to occupation of the home and shall be responsible for the payment of the outgoings on the home, including the mortgage repayments.
That the wife shall be responsible for repayment of the family tax benefit debt to Centrelink and shall indemnify and keep indemnified the husband in relation to that debt.
That other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to proceeds of bank accounts, superannuation entitlements, money, and personal effects presently in their respective possession and control.
That except as otherwise provided herein, the husband and the wife remain liable for any debts in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.
That in the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within 14 days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
(P)PAM 3621 of 2003
| KATHLEEN PATRICIA LAWSON |
Applicant
And
| GEORGE RUSSELL LAWSON |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for final parenting orders and for the adjustment of property pursuant to Section 79 of the Family Law Act 1975. The parenting issues were resolved between the parties on the first day of hearing and orders were made by consent on that day. Those orders provide for the three children of the marriage to live with the wife and to have contact with the husband on alternate weekends and half of school holidays to commence when the husband has suitable accommodation.
The proceedings were commenced by the wife who filed an Application on 2 September 2003. She sought an order for sale of the former matrimonial home at 9 Dino Close, Rooty Hill and after discharge of the mortgage and debts owed by the parties, for the balance of sale proceeds to be paid 75% to her and 25% to the husband. At hearing, the wife amended her application seeking an order that the husband transfer his interest in the home to her in addition to the payment of further funds, such that she would receive an overall 75% of the net asset pool of the parties. In addition the wife sought an order that the husband pay his child support arrears from his entitlement to property settlement at the time of property settlement. In final submissions counsel for the wife submitted the wife should receive 55% by way of contributions and a further 20% adjustment for s.75(2) factors.
The husband filed a Response on 21 January 2004 seeking orders for the sale of the former matrimonial home and after discharge of the mortgage and debts owed by the parties, for the balance of sale proceeds to be paid 75% to him and 25% to the wife. At the commencement of hearing, the husband’s counsel submitted the husband should receive an overall 55% of the net asset pool of the parties. This was based on a 60% to the husband by way of contributions and a 5% adjustment to the wife for Section 75(2) factors. During cross examination the husband said he wanted no adjustment for the children. In final submissions counsel for the husband submitted there should be an equal division between the parties based on contributions and an adjustment no greater than 7.5% to the wife for s.75(2) factors. Without further explanation, counsel then submitted that overall the wife should receive 60% of the net asset pool. He submitted the home should be sold and the mortgage and family tax benefit paid from the proceeds of sale prior to distribution to the parties.
Background facts
The wife was born on 30 March 1969. She is 35 years old.
The husband was born on 26 March 1951. He is 53 years old.
The parties started living together in June 1986.
The husband divorced his first wife in July 1987 and a Section 87 Deed in relation to their property settlement was approved by the Family Court on 3 December 1987. The husband and his first wife had four children.
The parties married on 26 January 1991.
The wife says the parties separated on 20 February 2002. The husband says the parties separated when he left the home in April 2004. The parties are not divorced.
There are three children of the marriage, RHYS JACOB LAWSON born 22 September 1994, aged 10 years, ZOEY PEETA LAWSON born 26 September 1995, aged 9 years and TAYLA GRACE LAWSON born 13 October 1996, aged 8 years.
The husband moved out of the former matrimonial home in about mid April 2004. The children have remained living with the wife in the former matrimonial home since then.
Evidence
The wife relied on:
·Her Application filed 2 September 2003;
·Her Affidavit sworn 18 October 2004 and her oral testimony;
·Her Financial Statement sworn 14 April 2003;
·The Affidavit of her father, Albert Howe, sworn 16 October 2004 and his oral testimony; and
·The Affidavit of Amanda Hall sworn 17 October 2004 and her oral testimony.
The husband relied on:
·His Response filed 21 January 2004;
·His Affidavit sworn 14 October 2004 and his oral testimony;
·His Financial Statement sworn 20 January 2004.
Both parties tendered additional documents that became exhibits in the proceedings.
The issues
The primary issues are these:
·Whether the parties separated in February 2002 or April 2004.
·Whether the husband should have the funds drawn down from his long service leave entitlement notionally added to the asset pool for inclusion in the net assets of the parties.
·Whether there should be a Kennon finding in favour of the wife.
·Whether there should be any adjustment to the wife for alleged wastage by the husband.
The relevant law – property
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Section 79(2) provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)The effect of any proposed order upon the earning capacity of either party;
d)The matters referred to in sub-section 75(2) as far as they are relevant;
e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)Any child support payable.
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595). The process involves four steps. Firstly, identifying the assets, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4) (a) to (c) and the effect of any proposed order upon the earning capacity of either party. Thirdly, evaluating the relevant matters contained in section 75(2). The court must also take into account any other order already made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for the children of the marriage. Fourthly, the court must be satisfied in all the circumstances that it is just and equitable to make the orders [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
Evidence and findings
The parties agree they separated for about 4 months in 1999. They disagreed about the date of their final separation. The wife said the date was 20 February 2002. The husband said it was April 2004 when he moved out of the former matrimonial home at Rooty Hill to share rented premises nearby. The wife deposes to a conversation she had with the husband on or about 20 February 2002 when she said:
“It’s over, I can’t take your drinking and abuse any longer.”
The wife advised Centrelink in February 2002 that she had separated and applied for the sole parent’s pension. The parties remained living under the one roof. The wife deposes to the fact that the following changes took place in the household at that time:
a)The parties ceased their sexual relationship;
b)The wife stopped performing almost all household tasks for the husband;
c)The parties stopped socialising as a couple.
There are other factors relevant to the issue which came to light during the course of the hearing:
d)The husband withdrew sums from his long service leave entitlement without accounting to the wife from February 2002.
e)The husband created his own bank account after February 2002 and transferred the $3,000.00 from the parties’ joint account into his own account.
f)In March 2003 the wife claimed child support from the husband.
g)The wife filed her Application in these proceedings in October 2003 and the husband his Response in January 2004.
Under cross examination on the issue of separation, the husband was confused. He said he did not understand the concept of separation under the one roof and conceded it was possible the parties were separated in the way suggested. He did not accept his wife had communicated to him the fact they had separated as he wanted the marriage to survive. The husband was agitated and distressed while giving this evidence and I believe he was genuinely confused about the meaning of separation. I further accept that he may have held some remote hope during the period February 2002 to April 2004 that his wife might agree to reconcile with him. However, that does not mean the parties were not separated. There was abundant evidence before me to satisfy me the relationship between the parties had completely broken down, and they remained living at Rooty Hill because of the paucity of other options available to them.
I therefore find the parties were finally separated as the wife asserts on or about 20 February 2002.
In relation to Step 1: Identifying the assets and liabilities of the parties
The parties reached agreement as to the value of the assets and the quantum of liabilities. At one point in the hearing, there was an issue as to whether the long service leave funds already drawn by the husband should be included in the net pool. This item is marked in bold and italicised in the table below. I have discussed the issue of its inclusion in paragraphs 28-30.
With the exception of the long service leave item referred to in paragraphs 28-30, I find that the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table:
| Assets as at the date of hearing | $ |
| 9 Dino Close, Rooty Hill [Joint tenancy] | 507,500.00 |
| Husband’s motor vehicle | 1,500.00 |
| Wife’s motor vehicle | 2,000.00 |
| Wife’s rollover fund | 16,500.00 |
| Wife’s superannuation | 3,000.00 |
| Husband’s superannuation | 138,641.00 |
| Husband’s long service leave entitlement [net of tax] | 17,804.00 |
| Husband’s long service leave [already taken][net of tax] | 12,197.00 |
| Husband’s St George Bank account | 3,000.00 |
| Loan secured by mortgage on the Rooty Hill property [Wizard home loans] | (242,603.00) |
| Overpayment of Family Tax Benefit owed to Centrelink | (4,896.00) |
| TOTAL NET ASSETS AT HEARING [including item in italics] | 454,643.00 |
The parties agreed to exclude household contents held by both parties, and to exclude the proceeds of the wife’s bank account which had a minimal value.
There was no evidence before me in relation to payment of legal costs by either party. Both parties asked me to ignore legal costs in my assessment of the net asset pool and I have done as requested. No account has therefore been taken of legal costs paid or anticipated to be paid by either party.
The husband’s long service leave: It was agreed between the parties that the husband’s entitlement to long service leave be treated as property, not as a financial resource. The husband had already been paid a capital sum, being part of his entitlement by the time of hearing. He had a further entitlement due to him. Both net figures in relation to paid long service leave and his entitlement to long service leave included in the table in paragraph 25, were agreed between the parties. It was the wife’s contention that the court should notionally add back $12,197.00, being funds withdrawn by the husband from his long service leave entitlement, net of taxation and unaccounted for, between February 2002, the date of separation and 6 June 2004. [Ex W13]. The husband asked me to accept he was unaware he had received any part of his long service leave entitlement with the exception of one week he had taken as extra holidays. Under cross-examination by counsel for the wife, the husband was shown wage record after wage record with various amounts included in the records as paid long service leave. When shown a figure of $5,738.17 for 21 December 2003 taken as long service leave, the husband reacted angrily “it’s a complete mystery to me; never seen that money” “I’ll be going straight to that pay clerk”. He agreed he was able to take his long service leave as a cash entitlement, being the remaining after tax sum of $17,804.00 [Ex H2].
As he insisted he knew nothing about these funds, the husband was unable to explain the use made of the long service leave funds already drawn by him since February 2002. It was a problem generally in this case identifying what proportion of the husband’s income had been spent on household bills and expenses and what proportion the husband spent on alcohol, gambling and expenses which did not benefit the family. The husband had a very limited understanding of the way the family managed their finances, and limited interest in the process. Put simply, he wanted me to accept that he had earned all the income, that he had paid all the household expenses, and that anything he spent on himself he was entitled to do without reference to his wife. I have not accepted this proposition. I am satisfied the wife has contributed indirectly to the accumulation during the marriage of the husband’s long service leave entitlement and as a consequence, is entitled to a share of that entitlement. I note the husband’s counsel made no final submission on this issue. I have decided both figures for long service leave included in the table of assets at paragraph 25, have been properly included.
I therefore find the nett asset pool of the parties available for division between them to be as set out in paragraph 25, being a total of $454,643.00.
In relation to Step 2: assessing the contributions of each party
The parties lived together for nearly 16 years. At the date of cohabitation the wife had no assets of significance. The husband owned a property jointly with his first wife at 6 Adelphi Crescent, Doonside subject to mortgage, where the parties initially lived together. The husband and his first wife divided their property pursuant to a Section 87 Deed approved by the Family Court on 2 December 1987. The recitals to the Deed list the parties’ assets as having a total gross value of $59,740.00 and debts with a total value of $43,902.00. That is, a total pool of just under $16,000.00. The Deed provided for the husband to pay to the first wife the sum of $7,000.00 and to take responsibility for all the parties’ debts and for the first wife to transfer her interest in the Doonside property to the husband. The husband has not submitted a precise figure for the net value of the assets he held at the date of commencement of cohabitation. On the figures set out in Recitals E and F, I have calculated that the husband had an entitlement to net assets of approximately $1,600.00 as at December 1987. One of his assets was the property at Doonside, albeit subject to a substantial mortgage. That asset was eventually sold. The sale enabled the parties to purchase the Rooty Hill property, the most valuable asset in the property now to be divided between them. The Full Court in Pierce v Pierce (1999) FLC 92 – 844 at page 85, 873 said as follows:
It is necessary to weight 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…regard must be had to the use made by the parties of that contribution.
As a result of his employment with William Farrar Flour Mills from 1971, the husband had been contributing to superannuation for several years before the parties commenced living together. The company was then known as Allied Mills Pty Ltd. The Superannuation Information Form tendered in evidence establishes the husband has a pre-July 1983 component. [Ex H4]. The total of his actual contributions at June 1986 from the Allied Mills Superannuation Fund was $3,285.00 [Ex W12]. As a result of the value of and use made by the parties of the Doonside property and the husband’s superannuation entitlement I have credited the husband with a higher initial financial contribution than the wife.
The husband asserted that he repaid the loans secured on the Doonside property and completed the payments in 1991. He said he worked 60-70 hours each week, including substantial overtime from the time the parties cohabited. However, the wife strongly denied the husband had met all the mortgage payments on the Doonside property. She said she contributed to the repayments, the household accounts, the rates and other household expenses from her wages. I find the wife’s recollection of these arrangements to be considerably more reliable than the husband’s. It was 1987 when the husband admitted to spending almost all his wages on gambling and drinking for a 6 month period and he agreed that was not the only period in which he was drinking and gambling. It is impossible to quantify precisely what the husband spent on these personal expenses but I am certainly satisfied that during this period, the husband and the wife were both contributing to the mortgage and other expenses on the Doonside property and the household generally.
During the early years of cohabitation the wife’s parents gave the parties a refrigerator, clothes drier and microwave oven. In about 1989 the wife’s parents lent the parties $1,300.00 interest free to complete renovations but as the funds were repaid in full I have taken no account of this loan in assessing the parties’ respective contributions.
In 1993 the wife received a redundancy package from her employer in the sum of $20,000.00 which she contributed to renovations and household expenses. In the same year, the parties borrowed about $90,000.00 to buy a new car and install a new kitchen and bathroom at the Doonside property.
In 1997 the husband said in evidence he received an inheritance of just under $20,000.00 from the proceeds of sale of his late mother’s home. He had included a higher figure in his affidavit evidence. His evidence was unreliable. The wife recalled the figure as closer to $11,000.00. There is no objective evidence before me of the precise amount the husband received by way of inheritance. The husband says, and the wife does not disagree, that part of those funds were used to build a patio, and part to meet household expenses.
In 1997 the parties purchased land at 9 Dino Close Rooty Hill for $90,000.00 and built a home on the land in late 1997 at a further cost of $130,000- $140,000.00. They moved into their new home in April 1998 after selling their Doonside property for $137,000.00 and borrowing the balance from St George Bank.
In early 1998 the parties borrowed approximately $6,500.00 interest free from the wife’s parents to construct the driveway to the property. Again, these funds have been fully repaid. In or about 2000 the wife received $5,000.00 from her late grandmother’s estate which was used for family expenses.
In 2001 the husband received about $2,500.00 as compensation for a work injury. There is no evidence as to how those funds were spent.
The wife was employed full time as a laboratory technician when the parties commenced cohabitation. She remained in full time employment until the birth of the parties’ first child in September 1994. The parties had their second child in September 1995 and Tayla, their third in October 1996. Between about 1999 and 2002 the wife assisted at weight watchers in exchange for a free session for herself, but she received no wages for this service. In 2002 the wife recommenced work for Coca Cola Amatil for 12 months under contract, until the company was purchased by Visypak. After a period of casual employment, the wife commenced full time employment with Visypak as a laboratory technician from 1 December 2003. She has a present income of about $40,000.00 per year and receives some Centrelink payments.
The husband worked full time during the relationship. He commenced employment with William Farrar Flour Mills in January 1971 and although the company has undergone a number of name changes, the husband has remained an employee of the same firm. According to his PAYG Payment Summary for the year ending 30 June 2004, the husband earned a gross income of $85,700.00 in that year. The records show he earned $81,044.00 in the year ending 30 June 2000. [Ex H4].
It was not possible to establish with any degree of certainty which party paid which expenses during the periods in which the wife was working and it is of no consequence in assessing each party’s entitlements by way of contributions. There is no evidence to suggest the wife did not contribute her income to the expenses of the family and I am satisfied that she did so. See Parshen v Parshen (1996) FLC 92-720. Counsel for the husband endeavoured to establish that it was the account into which the husband paid his wages, from which the significant family expenses were paid and it may well be that this was so. That however, does not change the fact that the wife contributed.
I am satisfied that were it not for other factors which I will now deal with, I would have found 53% in favour of the husband on contributions.
The additional factors which I am asked by the wife’s counsel to take into account in assessing each party’s overall entitlements under Section 79(4) of the Act are, the husband’s excessive use of alcohol and consequent wastage of matrimonial funds, the husband’s violence towards the wife and the impact of this behaviour on her contributions to the household and the wife’s post-separation contributions. I have dealt with the issue of the husband’s use of alcohol as a Section 75(2)(o) factor later in these reasons, in accordance with the principles in Kowaliw v Kowaliw (1981) FLC – 91-092.
A question is raised as to whether and if so, to what extent domestic violence is relevant in the exercise of my discretion under Section 79 of the Family Law Act. The wife submits her contributions as homemaker and parent are enhanced due to the physical and emotional abuse inflicted on her by the husband during the course of the marriage. In the joint judgment of Fogarty and Lindenmeyer JJ the Full Court in Kennon v Kennon (1997) FLC 92-757 held
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.” …
“There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears to be appropriate to give effect to them:” …
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 … so return this court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past.” …
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.”
The husband reluctantly agreed in cross examination that it probably would have been harder for the wife to contribute at home if she were coping with domestic violence. He said he became exasperated at times because his wife did not perform household tasks to his satisfaction. He agreed he very occasionally caused her bruising, but not intentionally and he regretted doing so. He conceded his drinking might have caused difficulties for his wife in trying to manage household tasks. He denied the wife was subject to any degradation. The husband’s counsel urged me to accept that the wife had accepted the husband’s lifestyle choices by marrying him in 1991. On the other hand, the husband’s counsel submitted there had been no incidents of violence or intimidation by 1991. A lot of time was spent during the hearing trying to establish the timing of alleged incidents of intimidation and violence by the husband against the wife, and understandably it was difficult for the wife to recall with accuracy the precise timing of every incident. The question for me was whether during the course of the relationship, the husband’s conduct was such as to warrant increasing the wife’s contributions.
The wife said that particularly from after the birth of the children, she used to do what the husband wanted for fear of his reaction if she refused. She tried to keep the house clean so he would not have anything to complain about. She would hurry dinner to ensure he was not kept waiting. If he was sleeping, she would keep the children out of earshot; if watching television, she would put the children in the back room so the husband wasn’t disturbed. At times the wife put the children to bed, and then went driving for several hours to avoid the husband.
The wife’s father gave evidence of seeing bruising on the inside and outside of both the wife’s upper arms. He could not remember exactly when he made this observation but estimated about a year after the parties moved to Rooty Hill. He recalled the husband demanding beers and insulting the wife verbally when he was visiting. He said he had had a civil relationship with the husband and had not attempted to interfere in the parties’ relationship. Although he was unsure of dates and times, I found Mr Howe’s evidence conservatively stated and convincing and I accept it.
The wife gave details of an incident in or about February 1996 when she alleges the husband pushed her around the lounge-room of the Doonside property and forced her onto her knees. She said he then sat on her back pushing her head towards the floor. She said the husband had wanted to use her car and she had refused because he had been drinking. The wife did not report the incident. I found the wife’s evidence credible and I find the incident occurred at least substantially as she described it.
From sometime after the birth of their third child in 1996, the wife says the husband used to lock her out of the house more than once a month. He would lock the screen door which could not be unlocked from the outside. On one occasion he wedged a chair under the door handle to stop her getting in. The wife alleged he used to say words to this effect “if you want to go whoring round the town, you may as well not come back.”
In or about May/June 1999 the wife asserts the husband had been drinking from about 3p.m. She had been folding clothes in the family room she had brought in from the dryer in the garage. The children were with her. She had dropped a sock on her way from the dryer and the husband wanted her to pick it up. She refused. She described the husband pulling her up from the couch by the hair, dragging her to the stairs and pushing her face down to force her to pick up the sock. The husband admitted asking his wife to pick up a dropped sock, and to pulling “a small portion of her hair” while she sat on the lounge. The wife said the husband’s actions caused a lump behind her ear which was sore to touch. The wife was extensively cross-examined on this incident. It was put to her the husband had apologised to her and shown remorse for his actions. The wife vehemently denied this and I accept her evidence. This incident was the trigger for the wife removing herself and the children from the home and spending 4 months living at the home of a friend. During that period, the wife supported herself and the children on Centrelink payments. The wife then reconciled with the husband on the basis of his promise not to repeat such behaviour.
On 21 March 2003 the wife commenced apprehended violence proceedings against the husband and the husband was charged with assault. The police facts, to which the husband admitted read:
During the afternoon of Friday 21 March 2003, the defendant began drinking and consumed between ten to fifteen stubbies of VB beer. About 7 p.m. this evening, the victim was in the kitchen preparing dinner when the defendant walked into the kitchen.
A verbal argument began with the defendant yelling at the alleged victim. The defendant then pointed his finger directly in the alleged victim’s face, which resulted in her biting his finger. The defendant attempted to spit at the victim. The victim retaliated by spitting back, the defendant again spat and raised his right hand towards the alleged victim.
The defendant then tried to rip the alleged victim’s dress, he pulled at the front of the dress which ripped, he then grabbed the alleged victim from behind with his arm around her neck and threw her onto the floor.
The alleged victim punched the defendant, and the defendant again pulled at her dress, and proceeded to pull the alleged victim’s underwear up as far as he could. The alleged victim grabbed the defendant by the testicles and squeezed. The defendant swore at the alleged victim which resulted in the alleged victim punching the defendant twice in the face. The alleged victim then ran to the telephone and dialled triple 0. She then waited for police to arrive at her neighbours house.
…police arrested and cautioned the defendant, who said “yes, I ripped her dress off, I have been waiting for you police to come.”
The parties’ neighbour, Amanda Hall gave evidence in the proceedings and verified that the wife had sought her assistance on the day of this incident. She saw a bruise mark on the wife’s upper arm when the wife arrived at her front door. The husband gave a completely different version of events in his evidence set out in paragraphs 46-48 of his affidavit. However, under cross-examination, the husband admitted to being under the influence of alcohol and to causing bruising to his wife. The husband was charged with assault and agrees he was subsequently convicted on the basis of his plea of guilty. He said:
90% of the time I did not cause them [bruises]
On the day of his arrest, the husband threw the wife’s clothing, including her underwear, out of the front door onto the ground outside. The wife picked it up and put it into the boot of her car. The wife’s father confirmed that the wife and children stayed with him and his wife for a week after the criminal proceedings. On 24 March 2003 apprehended violence orders were made for the protection of the wife for a period of 12 months. The husband was prohibited from approaching the wife within 12 hours of consuming intoxicating liquor or drugs. On the same day, the wife consulted a doctor, Dr Danh Nguyen. The wife said the husband’s actions caused her pain and distress.
The wife says she tried to rent a property after the incident in March 2003 but was unsuccessful because her employment was casual at the time.
In February 2004 there was a further incident at the home when the wife alleged the husband had been drinking after returning home at about 6 p.m. The husband grabbed at the wife’s breast in front of their daughter over an incident involving changing the air conditioning controls. The wife called the police and the husband was charged with breaching the existing apprehended violence order by approaching her within 12 hours of consuming alcohol. The wife said the police were critical of her for waiting so long to enforce the Order. The wife reported saying to the police “when the kids see physical stuff, and they’re scared, I thought I’d use it [the AVO].” The wife was visibly distressed as she gave this evidence at the hearing.
When cross-examined in relation to his conduct during the relationship, I observed the husband in the witness box as rigid and at times angry, belligerent and arrogant. I found the manner of his giving evidence at the hearing to some extent corroborative of the wife’s assertions about his conduct in the home. Where I was faced with two different versions of events in relation to the incidents described by the wife, I accepted the wife’s evidence against that of the husband. I found the husband’s attitude to these events disturbing. At times he suggested his actions were justified. At times he showed an astonishing level of arrogance. He showed no insight into the impact of his behaviour on his wife or his children. The husband’s counsel submitted the husband was “a bit rough at the edges” a “working class man” and I should assess his evidence in that light. I do not accept that submission. The husband’s behaviour was unacceptable and inappropriate and there are no mitigating factors on which he can rely. The wife had to manage the family and the husband and to deal with the husband’s behaviour. I do not accept the husband’s counsel’s submissions that this matter compares with I & I [2004] FMCAfam 203, where there was no course of conduct as applies here. The cases also referred to me of C &C [2003] FMCAfam 145 and KK & KG [2003] FMCAfam 609 where an adjustment was made do not assist the husband. I am satisfied the wife’s contributions were made more arduous than they ought to have been by the husband’s violent and intimidatory conduct. Added to the effect of the husband’s regular drinking on the wife’s contributions to the family, I have concluded that the wife is entitled to a 5% adjustment in her favour in relation to this factor.
When the husband left the home in April 2004, according to the wife, he did not tell her for two months he had stopped making the mortgage payments, the medical fund payments and house insurances. The wife said she also received bills for unpaid household accounts including the electricity, gas, water rates and Foxtel. The husband agreed he revoked his authority for Wizard to deduct the mortgage payments from his account during April 2004 [Ex H1] knowing his wife and children were living in the house. He said he could not afford two households, though he was only paying rent of $100 per week. By letter from her solicitor dated 22 April 2004 [Ex H3], the husband sought the wife’s agreement to the sale of the home. Prior to the husband moving out, it appears the wife agreed to sell the home [Ex W8]. She subsequently changed her position. On 18 May 2004 the wife redrew $6,500 on the mortgage account to meet outstanding accounts including the mortgage arrears and to purchase a new washing machine. The wife told the husband what she had done and why. The wife also borrowed money from her parents to help with expenses. The wife’s father said he and his wife had been helping the wife to pay food, petrol and other bills, including $3,000.00 on 11 August 2004. The wife has met the mortgage repayments since April 2004.
The husband signed a 3 year contract transferring the electricity and gas accounts, which were in joint names, to a consolidated account with Energy Australia without consulting the wife. Although this did not alter the amounts payable, it changed the method of payment and made it harder for the wife to manage the accounts. The husband agreed he made this change without consultation with the wife believing it would save the parties money.
The husband said he closed the parties’ joint account and transferred the $3,000.00 balance into an account in his name only. He said the wife had access to the account, but the wife said she was unaware. It was agreed between the parties that this sum should be included in the net asset pool of the parties.
The husband pleaded ignorance in oral evidence about the financial predicament in which he left his wife and children when he left the home. His tone was abrupt and dismissive using such phrases as
“I offered her help several times”, “as much my fault as hers, thank you”.I found his attitude ignorant and irresponsible.
The husband has a present gross entitlement to superannuation of $138,641.00 [Ex H4]. The husband had a gross entitlement in May 2004 of $120,706.00 [Ex W 11]. I have taken into account in the husband’s favour the growth in the husband’s superannuation entitlement since he left the home.
It is conceded by the husband that apart from the care of a small garden, the wife was primarily responsible for the household tasks including cooking, cleaning, shopping, washing and ironing from 1986 until the parties’ first child was born in 1994. It is further conceded by the husband that the wife’s contributions to domestic tasks and to the care of the children until 1998 were superior to his. The wife said she prepared meals for the family, supervised the children, bathed them, ensured their homework was done and put them to bed. She said she received very little assistance from the husband. Every night, she says she used to clean up bottles after the husband’s drinking and put them in the recycling bin. The neighbour, Ms Hall to an extent corroborated this evidence.
The husband asserts that he made very significant contributions to the welfare of the children and to domestic tasks from 1998/9. Until then he continued to work a 60-70 hour week. He said the wife was a very poor housekeeper, the house being always untidy and dirty. He said the wife went out socially on most weekends and several evenings during the week, leaving him with the care of the children and the domestic responsibility. He said apart from cooking “she did nothing.” He said he spent his rostered day off cleaning, always doing the vacuuming and sweeping. He said for the last three years of the marriage, he did all the ironing for the family. He said from 6 months after moving to Rooty Hill, he did all the cleaning. The wife denied this. She said he gave her little assistance, though he did mop the floors and sometimes cleaned the stove.
The wife, on the other hand said she went out socially very infrequently, no more than once or twice a month. She said she never went out without preparing the evening meal. Her friend and neighbour Amanda Hall to an extent corroborated this evidence. She said she and the wife went out once or twice between January and March 2004, 3-4 times in 2003, twice in 2002. She said the wife “almost never came out” and “I have never seen her drink alcohol while out.” The wife said her husband would accuse her of having other relationships with words like “You were whoring around the town, weren’t you.”
Given the husband asserts he was working 60-70 hours per week, including working rotating shifts and some weekends, it would be impossible for him to be have been supervising the children and undertaking the housework to the extent asserted. The husband became very agitated and angry during cross examination on this issue. I find he has exaggerated. The wife says the husband spent much of his time after work watching television and drinking beer.
Again, I prefer the evidence of the wife to that of the husband. I have no doubt the house was not always neat and tidy with three children living there, but I do not accept the evidence of the husband that he did most of the housework while the wife did almost nothing. I do not accept the evidence of the husband that the wife was out socialising several nights of the week. I have concluded it is likely the husband has been a significant contributor to untidiness in the house, given the extent of his drinking.
The wife contributed to the care of the husband’s two sons from his first marriage. According to her affidavit evidence the wife used to drive the husband and his children on outings in their early years together and when the children moved to the central coast, she used to drive the husband to see them. The wife’s father deposes to the fact that the wife looked after two of the husband’s sons when they were living there prior to the birth of the parties’ eldest son Rhys. The younger of the two boys used to visit the wife’s parents with the wife and according to her father, the wife looked after him as though he were her own son. The wife said in oral evidence that one of the boys lived with the parties for several months and the other for several weeks. I have decided the wife made a significant contribution to the care of at least two of the husband’s children in the early years of their relationship.
The husband deposes to the fact that during the relationship the wife looked after their finances and paid bills and invoices. However, in his oral evidence he denied that she did any more than “handle the paperwork” and that he alone, had “managed the finances”. The husband was very obviously confused about what was being asked of him and what he had deposed to in his affidavit on this issue. When shown copies of accounts noted as paid in his wife’s handwriting, he tried to deny the writing was hers “not as neat as it could be”, “she can do better than that” in a childish and argumentative manner. I am satisfied the wife paid accounts for the family using funds from the husband’s income, and when she was also in paid employment, from her income as well.
In or about December 2001 the husband seriously injured his finger at work. The wife looked after him, assisting with dressing him, bathing him, feeding him and taking him to and from medical appointments. When the husband was disqualified from driving, the wife sometimes used to drive him to work.
The husband started paying child support from April 2004 but as the wife had lodged a claim more than a year earlier, the husband is in arrears of child support. He is gradually reducing the arrears as a result of his wages being garnisheed while meeting his child support obligations.
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
Taking all these matters into consideration leads me to the view that, as a result of their respective contributions, the assets of the parties should be apportioned 52% to the wife and 48% to the husband.
In relation to Step 3: A consideration of ‘future factors’
I have considered each of the factors listed in Section 75(2) of the Act.
·The husband is 53 years of age. The wife is 35 years of age. There was no evidence before me to suggest either party suffered any health problems.
·Both parties are in paid employment. The husband has demonstrated an earning capacity of about double that of the wife and the husband will continue to have a future maintainable capacity for employment that is superior to the wife. The wife will have the ongoing care of the three young children of the marriage. It is another 10 years before the youngest child is 18 years. The wife has insufficient income to meet her necessary expenses. This is the most significant of the Section 75(2) factors. There will be an adjustment in favour of the wife.
·Neither of the parties has commitments other than those necessary to support himself or herself and their three children. Neither party is cohabiting with another person.
·The husband’s current assessment for child support is $854.83 per month for the three children [Ex W5]. He is making a regular contribution towards the arrears which are now $4,900.00. Given the husband’s consistent work history, I am satisfied the husband will continue to pay child support in accordance with the Child Support Agency’s assessment and continue to pay off his arrears. I have decided the husband should not be required to discharge his child support debt from his entitlement to property settlement.
The wife complained about the husband’s consumption of alcohol. She said the husband had a habit of drinking VB beer every day, mostly stubbies first and then 750ml bottles. If she was not at home when he was drinking she would come home to find empty beer bottles all around the house. She said the husband drank 6-8 stubbies each night and 2-3 long necks. Often half empty bottles were left lying around the house. There was at least one case, often two, in the small white fridge in the laundry. She said that fridge “was always full of beer.” His drinking had increased since the children were born. He drank at the local Imperial Hotel about 3-4 times a week. He used money from his pocket and EFTPOS from the joint account, until it was closed, to pay for the alcohol. He used to ask the children to fetch him beers from the fridge “almost from the time they could walk.” The wife described two occasions when the husband fell after drinking: once before the children were born when he fell down stairs at Wentworth Park greyhound races and once in about 1998 when he fell down the stairs at the home. The parties’ neighbour Amanda Hall said it was “very rare” for her to see the husband without a beer in his hand, when she saw him about once a week, sometimes more. The husband said he mainly paid for alcohol in cash withdrawing from the ATM at the Imperial Hotel and the video shop nearby the hotel. He was cross-examined about an evening in January 2003 when he withdrew 3 amounts of $150.00 from the hotel. He agreed some of that money might have been used for alcohol and gambling. The husband denied drinking to the extent claimed by the wife. I preferred the evidence of the wife where it differed from the husband on this issue. I am satisfied the husband was a regular and heavy drinker and spent significantly more than the $25-$50 per week on alcohol he was prepared to concede in cross-examination.
There is some evidence in relation to how much was spent by the husband on alcohol and gambling, upon which I have relied. On his own admission, the husband said he spent about $20,000.00 on fines, property damage and expenses relating to four convictions for drink driving he had received since the parties commenced cohabitation.
Baker J in Kowaliw v Kowaliw (1981) FLC 91-092 held:
Marriage is for most couples an economic partnership. Married couples live together and work together with the ultimate object of purchasing a home, paying it off, acquiring other assets with the overall object of attaining a higher standard of living. The reported decisions in respect of applications for settlement of property under s 79 of the Act are unanimous that both parties should share the economic fruits of a marriage, having regard to the provisions of s 79(4) and s 75(2) although not necessarily equally…
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
The wife gave detailed evidence of a period approximately a year or so after the commencement of cohabitation when the husband played cards regularly for 4-5 hours on 2-3 evenings a week in a room at the back of the Doonside Hotel. For 6 months, she said the husband said to her each week “I’ve got no money left.” The husband was paid in cash and was spending his wages on drinking and gambling. The husband admitted to wasting about $12,000.00 during this 6 month period.
I accept the evidence of the wife that she tried to stop the husband wasting money on these activities and at no time acquiesced in his behaviour. The husband admits to wastage of $32,000.00 without including the cost of purchasing alcohol at home and at the local hotel on an almost daily basis. The figure must in reality be much higher than $32,000.00. I am satisfied the parties would be considerably better off financially had the husband not spent his income recklessly in the way he did.
I have taken into account the husband’s financial irresponsibility in spending excessively on alcohol and gambling as a s.75(2)(o) factor.
Taking all s.75(2) factors into account, I have decided the wife should have a further 20% adjustment in her favour. This will give the wife 72% of the net pool overall.
The husband asks that the home be sold and the mortgage discharged. The wife asks that the husband transfer his interest in the home to her and that she indemnify the husband in relation to the mortgage. I agree with counsel for the wife that the wife should be given the opportunity to remain in the matrimonial home with the three children. However, there is a substantial mortgage on the home and I have decided that to leave the husband as a co-borrower indefinitely would not be fair to him. I have therefore made orders which require the wife to discharge the loan held in joint names within 6 months. If the wife is able to re-finance the loan, she should be able to do so within that period. If she is unable to do so, I have provided for the home to be sold and the mortgage discharged at sale.
It is my view, that a just and equitable result requires the wife to receive the home, subject to mortgage, the assets she presently holds and a further sum of money from the husband. This will almost certainly mean the husband will be required to rent accommodation into the future rather than own his own property. The husband will retain his superannuation, but will have few assets apart from this. The matrimonial assets total $454,643.00 which means the wife needs the sum of $ 327,343.00 to receive 72% of the net asset pool. Neither party sought a splitting order in relation to the husband’s superannuation fund.
The wife is to retain the home, subject to the mortgage and have responsibility for repayment of the debt owed to Centrelink. This means she will have the assets and liabilities set out in this table:
| Assets and liabilities to be retained by wife | $ |
| Wife’s motor vehicle | 2,000.00 |
| Wife’s Rollover fund | 16,500.00 |
| Wife’s superannuation | 3,000.00 |
| Centrelink debt | (4,896.00) |
| Value of matrimonial home | 507,500.00 |
| Loan secured by mortgage on the home | (242,603.00) |
| Total | 281,501.00 |
She will therefore need a further $45,500.00 [rounded figure]. The husband will have the assets set out in the following table, as well as responsibility for repayment of the child support arrears.
| Assets and liabilities to be retained by husband | $ |
| Husband’s bank account | 3,000.00 |
| Husband’s motor vehicle | 1,500.00 |
| Husband’s long service leave entitlement | 17,804.00 |
| Husband’s superannuation | 138,641.00 |
| Husband’s long service leave entitlement already drawn down | 12,197.00 |
| Total | 173,142.00 |
I am satisfied that in all the circumstances the Orders set out at the beginning of these Reasons are just and equitable.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 25 November 2004
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