M and M
[2003] FMCAfam 544
•15 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2003] FMCAfam 544 |
| FAMILY LAW – Property settlement – conduct of parent – domestic violence. |
Family Law Act 1975
Kennon v Kennon (1997) FLC 92-757
JEL v DDF [2000] FamCA 1353
| Applicant: | MRM |
| Respondent: | MWD |
| File No: | DGM1747 of 2003 |
| Delivered on: | 15 December 2003 |
| Delivered at: | Dandenong |
| Hearing date: | 26 September 2003 |
| Post hearing submissions: | 10 November 2003; 14 November 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A Combes |
| The Respondent: | In person |
ORDER
That from the funds held presently on behalf of the husband and wife at the National Australia Bank account the husband receive $7,124.30 thereof and the wife receive $81,883.49 thereof. Any interest amount is to be divided equally between the parties.
Otherwise each of the parties retain for their own benefit their superannuation interests.
The wife within 90 days hereof make available for collection by the husband or an agent of the husband his gymnasium set, personal belongings and tools such that she is able to locate and still has in her possession. Collection to occur on the MP.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM 1747/2003
| MRM |
Applicant
And
| MWD |
Respondent
REASONS FOR JUDGMENT
Preliminaries
Proceedings commenced upon the wife filing an application on the 6/3/2003. Some matters which she sought in that application were dealt with by consent orders made on the 26/5/2003 in the Family Court of Australia at Dandenong. In particular, those orders provided for the sale of the former matrimonial home situate at LY Road in the State of Victoria and after payment of expenses, encumbrances and “the sum of $7065.30 to the wife and the wife supply appropriate accounting at trial” [see order no.4(c)], the balance was to be, and indeed was, placed in a trust account held on behalf of the parties by the wife’s solicitors. Those trust monies were then reduced (by order of this court made on the 26/9/2003) in the sum of $50,000 which was paid to the wife on the terms as set out in order No.1 of those orders which is as follows:
“(1) The wife have released to her forthwith from the monies held in the interest bearing account at the Bank at
Mt account the sum of $50,000 by way of partial property adjustment between the parties. Out of such funds the wife is to pay the sum of $4300 to Mr & Mrs T and thereafter to indemnify the husband in respect to all and any monies said to be owed and/or owing by the parties to the Ts.”
At the time of filing the wife sought a sale of the former matrimonial home and an apportionment of the net sale proceeds as to 70% to the wife and 30% to the husband. At trial she sought that the totality of the funds in trust be paid to her. In her application she also sought:
(a)That the husband transfer his ownership of a 1986 Ford motor vehicle to her. By trial that vehicle had since been written off; and
(b)That the contents of the home and the parties’ superannuation be divided equally. At trial she sought a retention by each party of what each currently had; and
(c)That the proceeds of the parties’ joint bank account and house flooding insurance claim be divided in such manner as the Court determined. At trial, there were no monies remaining to be divided.
The wife relied upon her statement of financial circumstances sworn 29/1/2003. She was at that time engaged as a Sales Assistant at the ON working full time and earning $508.20 gross a week. Her income was supplemented by her receipt of a pension of $150 each week. She received no child support as her husband was serving a custodial sentence. The wife further relied upon two affidavits, the first being sworn on 30/4/2003 and the second on the 18/9/2003.
By the orders of 26/5/2003 the husband was ordered to file and serve a Form 3A response and a financial statement on or before 28/7/2003. He filed a statement of financial circumstances on which he relied on 4/7/2003. It was sworn the 26/6/2003. He filed a response on 4/7/2003 but failed to serve the other side until immediately prior to the trial commencing. Order no.7 provided the wife’s costs of the day were fixed in the sum of $660 with the question of payment reserved. I was not addressed as to this matter nor did any evidence pertain to it. Accordingly, I can make no determination. On the 11/8/2003 an order was made transferring the proceedings to this court. The husband was subsequently ordered to file and serve any further affidavits on which he sought to rely by 20/9/2003. The husband failed to comply with this order. As at the date of trial he had no affidavit evidence before the Court.
On 18/9/2003 the husband was personally served at PP with information as to the wife’s interest in the R Superannuation Trust in accordance with s.90 MZB of the Family Law Act 1975 (the Act). The account balance as at the 1/9/2003 was $7069.54.
The husband at the hearing on 26/9/2003 made application for an adjournment. He had failed to comply with procedural orders – a matter I took into account. He had ample opportunity to seek the assistance of Legal Aid Victoria subsequent to the commencement of these proceedings. Indeed, a solicitor attended on the morning of the trial to confer with the husband but legal assistance for the currency of the trial was declined. In the past, Legal Aid assisted the husband in the form of someone from that office appearing as amicus curiae. The basis of the husband’s application for an adjournment was an allegation by him that he, his wife and children were all involved in criminal activity which related to the theft of building materials that were then used on the construction of the parties’ home. There was absolutely no evidence of any kind before me (save for the husband’s broad allegations) to substantiate such an allegation. No charges had been laid against either of the husband and wife nor their children. No third parties claimed any interest in the proceeds of sale of the former matrimonial home. The wife opposed the granting of any adjournment. I determined the matter should proceed and that I should allow the husband to provide his evidence-in-chief in the witness box. In the circumstances of this particular case, which are detailed below, I determined it to be in the interests of justice and affording to each of the parties natural justice, to proceed to conclusion of the matter.
Each of the parties cross-examined the other and the husband cross-examined the parties’ son, A. Exhibits were tendered in evidence. The husband sought return of his tools and items in the garage and personal items and a one half payment to him of the net proceeds of sale of the former matrimonial home.
On 26/9/2003 orders were made (order no. 2) providing for the wife to file a post-hearing submission as to the dispersal by her of $7068.30. The husband was then at liberty to file his own submission in response within seven (7) days of service upon him of the wife’s submission. In compliance with that order the wife filed an affidavit sworn the 8/11/2003 under cover of letter dated 10/11/2003. Such affidavit was served personally upon the husband on the 13/11/2003 at PP. Correspondence dated 10/11/2003 and from the husband was received by the Court on the 12/11/2003. That correspondence in effect noted that the husband had not, at the time of writing, been served with the affidavit as to the dispersal of funds of $7068.30. He was duly served two days later. The order had not stipulated a time within which the wife was to provide the necessary material. A facsimile transmission from the husband dated the 14/11/2003 was then received by the Court in response to the affidavit material filed by the wife. That facsimile and its contents together with the wife’s affidavit filed post-hearing form part of the evidence in this case.
On 10/10/2003 the Court received a statutory declaration declared by the husband on 30/9/2003 and accompanying material. This material was received by the Court following the conclusion of the hearing. No provision was made in the orders pronounced on the 26/9/2003 for the filing of such a document by either party. I declined to accept its contents into evidence. Adopting such a course after the closing of the case would be highly prejudicial to the other party. Likewise, the husband wrote to the Court on the 24/10/2003. The contents of that correspondence are not in evidence in the proceedings.
History
The wife is aged 46 years, the husband is 47 years. The parties married on 1/10/1977 at S and separated on 28/5/2002 after a marriage of 25 years. They have three children – twin sons B and A born 1984 (who are aged 19 years) and a daughter K born 1988 who is now aged 15 years. The children live with their mother. K is financially and emotionally dependent upon her mother. The boys are engaged in employment although have been part financially dependent upon their mother.
The wife is currently occupied as a sales assistant earning approximately $21,580 net. The husband prior to his current incarceration worked as a carpenter.
Domestic violence
The wife alleged a long history of domestic violence. Her departure in May 2002 from the former matrimonial home was with the assistance of the Police. She remained in rental accommodation until the 20/12/2002 whereupon she returned to occupy the home. The husband had solely occupied it from May 2002 until his incarceration in December 2002.
I accept the wife’s evidence that the husband engaged in conduct toward her which caused her grave physical and emotional damage and that she fears for her life and for the safety of her three children.
I accept the account of domestic violence attested to by her in her affidavit and oral testimony. Amongst the episodes described in paragraphs 35-38 inclusive of her affidavit sworn 29/4/2003 and paragraphs 23-25 inclusive of her later affidavit are the following:- the husband has hit her to the head and body; locked her and – on another occasion both her and the parties’ daughter – in a garage; belted both her and their son A with the leg of a chair; damaged her motor vehicle; engaged in a road rage episode directed against the wife and the parties’ daughter K and her friends who were passengers in the car; threatened to kill her; “belted the living daylights out of” both A and herself; threatened each of the boys and the wife with a machete and engaged in other intimidatory and terrorising activity.
As a consequence of some of the husband’s behaviour the wife and K went into hiding for two weeks in early January 2001 and on 11/1/2001 the wife obtained an Intervention Order against the husband. She rented other accommodation for herself but returned to the matrimonial home in February 2001 with the husband promising to go to anger management classes and to get medical help for his temper. The husband in that month had withdrawn $8600 of the parties’ savings and spent it on the children. The husband shortly thereafter ceased anger management classes and was not working. He recommenced assaulting the wife whom by then was sleeping on the floor in the parties’ daughter’s room and he regularly attacked A and B for touching his tools. The wife would try to protect the boys and he would hit her to the head and body. The Police attended three or four nights a week most weeks during the 2001 year.
In the following year and on 28/5/2002 the wife obtained a second Intervention Order. This was of two years’ duration and obtained as a result of further episodes (directed to herself and the children) of extreme violence one of which culminated in the attendance of three carloads of Police and a divi-van at the former matrimonial home. The Police took the husband into custody after serving the Intervention Order upon him and the Police assisted the wife remove her clothes from the home. In the following six months the husband terrorised the wife. He harassed, stalked and both verbally and physically abused her. He damaged her rental premises and car. He was charged with 19 breaches of Intervention Order on one occasion and a further 12 on another. He was imprisoned in relation to these activities between 1–19 September 2002. The road rage episode then occurred on 4/11/2002 and on 6/11/2002 the husband was apprehended by Police and has been in custody since then. In that episode he damaged the wife’s car by deliberately ramming into the back of it and sideswiping it. At the time the parties’ daughter K was hysterical. He received a custodial sentence. The husband’s ongoing incarceration has been as a consequence of his being found guilty of threatening to kill the wife; breach of intervention orders and a pending trial in relation to charges not involving the wife but being of assault causing serious injury to another male.
The husband has written many letters to the wife and/or children since his incarceration in November 2002. At the time of trial he had written 160 and the wife described a lot as being of a threatening nature. One of those letters, dated 8/12/2003 was tendered in evidence. It was addressed to the parties’ son A and is threatening. It tells A that:
I am not dramatising but you all are in so much trouble now
And later:
Don’t think you are safe because the house and cars are gone. This does not matter …[this seems to include a reference to allegations of criminal activity concerning cars]
And later:
Your future and all of theirs is at risk now … no more games or idle threats mate, this is for real. Your choice mate.
Overall the letter informs the wife and children that they are not safe, their possessions are not safe and that others are watching them. The wife then gave evidence that she was recently photographed at the house she is renting and that her car had been damaged in the 2 weeks before trial. I accept her evidence. She describes a history overall of extreme domestic violence perpetrated by the husband against herself and the children. She is genuinely fearful for her life and that of her children. She intends to relocate, with the assistance of police, to accommodation unknown to the husband.
Debt to T
On 2/9/1999 the then employers of the wife offered to lend to the parties some money to assist them purchasing a home. Those persons were a J and M T. The parties agreed to pay the money back to the Ts within 6 months. The principal sum was $7,800. No interest payment on the loan was provided for. On 27/3/2000 the parties repaid $1,000. On 16/1/2001 the parties repaid $500. On 9/8/2001 the parties repaid $2,000. The balance then remaining at August 2001 was $4,300. No further payment has been made. The T have never sent to the parties a letter of demand nor instituted any proceedings for the recovery of the money as a consequence of which interest on the outstanding sum might accrue. The wife and the T have recently spoken about the loan and without the knowledge or consent of the husband agreed that the sum now owing is $7,500 because interest has been calculated on the outstanding sum at a figure of 8%. The calculation does not produce the sum claimed but in any event the husband is one of the borrowers on certain terms which appear in the last few weeks to have been changed as a consequence of this impending hearing and a conversation had between the wife and the T. The amount which I determined remained owing was $4,300 and monies were paid to the wife to repay the loan advanced by the T.
Asset pool at trial
The asset pool at the date of hearing comprised:
a)The monies held in trust on behalf of the parties $139,007.79
b)Wife’s superannuation $7,069.54
c)Husband’s superannuation $16,638.00
d)Wife’s motor vehicle
Purchased post-separation for $5,749.00
Nil equity
e)The wife’s chattels and furniture $Value unknown
Minimal
f)Husband’s tools and personal items $Value unknown
Minimal
TOTAL$162,715.33
Liabilities
a)Wife’s credit card $3,800.00
b)Loan to the T $4,300.00
c)Debts claimed by husband
Myercard $1,000.00
Visacard $9,000.00
Bankcard $700.00
Others – completely unsubstantiated in evidence
Other assets and liabilities (past)
Other assets held and other liabilities (past) are:
a)An amount of $7,065.30 was released to the wife in May 2003 for the payment of debts. She was to provide an accounting. As at trial she had failed to do so. She was required to file a post hearing submission. I shall return to that matter.
b)The wife had the use of a 1986 Ford Fairmont registered in the husband’s name. It was written off by the husband in the road rage episode. It was not of significant value, but the wife was required to obtain further borrowings to equip her with a motor vehicle with which she was able to transport the parties’ daughter K and to allow her to travel to and from her employment.
c)Husband’s tools and personal items, property, and property in garage. Some of these have been sold by the wife – total proceeds approximately $1,000.00 which were applied to providing for the family and the payment of expenses. Others remain in her possession and others as claimed by the husband are owned by the parties’ sons. The wife retains and is willing to provide to the husband his gymnasium set and personal clothing. In addition those tools belonging to the husband which she still retains can also be handed over to the husband. The remaining tools and other items in relation to which ownership is claimed by A shall remain in his possession. I accept his evidence as to ownership.
d)The chattels remaining in the home of the wife are old and the usual household items. They would be of little value and are necessary to the wife to provide for herself and the children.
e)Insurance cheques totalling $10,142.00 were received by the husband in August 2002 and retained by him. These monies were monies belonging to the parties.
f)The debts claimed to be owed in the husband’s Form 3A response are all (save the house encumbrances now paid out) unsubstantiated. Whilst he did have a Myer card, Visa card and Bankcard the debt at separation and its origin are unknown to me. He has had the benefit of $10,142 to apply to this debt. The wife concedes there was some credit card debt but does not concede its origins or quantum.
Contribution
At the commencement of their cohabitation neither the husband nor wife had any assets of significance. During the marriage they both worked hard for the most part. The wife was engaged primarily in the care of the children and she did at times obtain part-time employment. The husband worked as a carpenter. They applied their earnings to the welfare of the family. However the husband’s extreme conduct adverse to the wife caused her to face great difficulty in the carrying out of her role as mother and home-maker. The members of the household were in particular in the last 2 years of the marriage terrorised by the husband. He damaged property, assaulted them and made normal everyday living a precarious thing. The number of police attendances required at the home in 2001 and 2002 were indicative of a state of siege within the home that the husband caused.
The wife through her Counsel submits that the husband’s course of violent conduct is a factor which should be taken into account pursuant to section 79. In Kennon v Kennon (1997) FLC 92-757 on the issue of section 79 and domestic violence Fogarty and Lindenmayer JJ held:
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 contribution to the marriage, this is a factor which a trial judge is entitled to take into account in assessing the parties’ respective contributions under s 79.
This statement of law was upheld in the recent decision of the Full Court in JEL v DDF [2000] FamCA 1353 and in particular I refer to paragraph 136:
This court has acknowledged that contributions made in this role may be accorded additional weight where the role has been performed in difficult circumstances such as in domestic violence situations or where the role has been performed without the financial, physical or emotional support of the other party.
Accordingly, I intend to make an allowance for a contribution by the wife as a result of the husband’s violent conduct.
The husband built the family home. It was of some 50 squares but remained unfinished for months on end. The roof was never complete; only about 8 squares of the house had electricity and upon the husband’s departure the home was left in a derelict state by the husband. No improvement of any capital value had been made by the husband during his sole occupancy of the home save for some plastering. Whilst the parties were together and the husband engaged in construction of the home the wife was engaged in home duties and part-time work. I find both were making, at this time, a contribution.
Debts
The wife claimed that between May and December 2002 the husband had accumulated on the home, and left her with, debts of $10,865.30. She claimed a $3,800.00 Visa card debt in her name which remains outstanding in that sum. The wife had withdrawn $1,500.00 from the parties’ account shortly following separation and I accept that these were the only funds she received from the husband at that time to support herself and daughter and obtain other accommodation.
I indicated to the parties that I required the wife to comply with the earlier order and in particular I required details of payments made to whom together with primary source documents to evince evidence of payment as claimed in the total sum of $7,065.30. I accepted the Visa card sum would remain outside that accounting.
a)The wife claimed in her affidavit sworn 29/4/2003 arrears of mortgage payments for the period May to December 2002 of $3,598.48. The husband conceded $1,303.73. The wife failed to provide documentary evidence despite my request she do so. No explanation was forthcoming. I accept the husband’s figure of $1,303.73.
b)The wife claimed council rates of $556.09 outstanding as at 20/12/2002. The date of issue of the overdue notice annexed to the post hearing affidavit was 14/3/2003. Those changes relate to the period of occupation 1/7/2002 to 30/6/2003. The husband occupied the home for one half of this time. I accept however it was an account the wife had to pay and that it was appropriate that it be paid with the monies advanced to the wife by the earlier order. At the time she was receiving no financial assistance from the husband.
c)The wife claimed Telstra payments outstanding by the husband in the sum of $604.85. No documentary proof of this has been provided. In her post hearing affidavit that figure was reduced to $274.04. The accompanying source documents however bear no relationship to the period May to December 2002. No accounting has been provided.
d)The wife claimed water rates of $972.00. In her post hearing affidavit the wife claimed an amount of $201.25. The account produced related to the period following the husband’s departure from the home and did not indicate arrears.
e)The wife claimed a gas bill of $702.50. In her post-hearing affidavit that amount was $1,026.75. The annexure indicated as at 6/12/2002 a total amount including overdue amount was $628.00.
f)The wife claimed an electricity bill of $273.05. In her post-hearing affidavit the sum was $669.75. This was the amount owing at 4/8/2003. There was no evidence of any amount owing at 20/12/2002.
g)The wife claimed an amount of $303.33 for a vet bill. No evidence was produced to substantiate this claim.
What the wife in essence did was account to the husband for expenditure of mortgage, rates and a gas bill arrears totalling approximately $2,487.82 of the earlier sum of $10,865.30 claimed by her. The Visa card of $3,800.00 remains outstanding. The wife’s “accounting” simply pointed to other expenses incurred by her subsequent to the husband’s departure but which needed to be met. The husband has had the benefit of the insurance cheques. The wife has had the benefit of the advance of $7,065.00. Although I find no substantiation of many of her claims as to arrears left by the husband I am satisfied those funds were expended for the benefit of the parties and their children (for instance, the dental fees) and in some instances were payments requiring some immediacy. I propose to make no other adjustment in relation to the sum of $7,065.00 already received by the wife save to provide that the wife’s Visa card debt should have been paid with these monies and to that end I shall remove it from the liabilities in the asset pool.
Section 75(2) factors
The wife is required to relocate her family consequent upon the husband’s past behaviour toward her and his threatened behaviour in the future. She will need to find other employment. She has the care of K and is unlikely to ever receive a payment of child support. She has received none in the past even when the husband was in fact employed. The husband has in the past damaged her property and she believes he is from prison directing others to damage her property. She has minimal superannuation.
The husband may find it difficult to gain employment once released. He spent some time in prison in a psychiatric unit but his current state of mental health is unknown to me as there is no evidence from a psychiatrist before me. Certainly his presentation is one of a person whom at this point in his life is prone to extremes of uncontrolled emotion. He cried endlessly in the concluding part of the proceedings. He said he had been diagnosed as suffering from clinical depression, has attempted suicide and is on antidepressant medication. He is skilled as a carpenter and capable of earning a good income pursuing this occupation at a later stage. He may require anti-depressant medication or he may not but I have no evidence he will be unable to work.
Overall justice and equity
The total asset pool is $162,715.33 less the monies owed to the T only resulting in a pool of $158, 415.33. The wife has received $50,000 but repaid the T loan. She has thus had the benefit of $45,700. In addition she shall keep her superannuation. She thus has a notional amount of $52,769.54. The husband has his superannuation of $16,638.00.
I determine that a contribution percentage of 20% favouring the wife should be made with a further adjustment of 15% for her s.75(2) factors. This is an apportionment to the wife of 85% of the asset pool. I propose also to order that the husband retain his personal belongings, gymnasium set and tools remaining in the wife’s possession.
Accordingly, the wife is to receive the sum of $134,653.03. The husband the sum of $23,762.30. The wife has already $52,769.54. The husband has already $16,638.00. The wife shall receive a further $81,883.49. The husband shall receive a further $7,124.30. Any interest accrued on the monies whilst held in trust is to be divided equally between the parties.
I, Sophie Killen, certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 15 December 2003
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