MADDOX & MERZ
[2014] FCCA 2158
•23 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
MADDOX & MERZ [2014] FCCA 2158
Catchwords:
FAMILY LAW – Application for alteration of property interests – elderly parties – short marriage – establishing the property pool – assessment of contributions – whether contribution rendered more arduous due to family violence – assessment of future needs – just and equitable order.
Legislation:
Family Law Act 1975, ss.75(2), 79
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon [1997] FamCA 905
Minterly & Minterly [2013] FamCA 418 (4 June 2013)S & S [2003] FamCA 905
Stanford & Stanford [2012] HCA 52
Applicant: MS MADDOX
Respondent: MR MERZ
File Number: WOC 376 of 2013
Judgment of: Judge Altobelli
Hearing dates: 21-22 July 2014
Date of Last Submission: 22 July 2014
Delivered at: Wollongong
Delivered on: 23 September 2014 REPRESENTATION
Counsel for the Applicant: Ms Reynolds
Solicitors for the Applicant: Dribbus Kovacevic Lawyers
Respondent: Self-represented ORDERS
(1)That the Husband pay to Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife;
(a)The sum of $30,000 within 7 days of the date of these Orders; and
(b)A further sum of $39,382.60 within 60 days of the date of these Orders.
(2)In the event that the sums are not paid in full by the due dates in Order 1;
(a)The amount of $69,382.60 is then due and payable along with interest payable in accordance with the Family Law Act 1975 and Federal Circuit Court Rules on the balance outstanding from time to time; and
(b)The property known as and situated at Property M, being the whole of the land more particularly described as folio identifier number (omitted) (hereafter “the home”) be sold and the following provisions apply;
(i)List for sale by private treaty for a period of three (3) months;
(ii)Agent as agreed but in default as nominated by the President of The Real Estate Institute of NSW;
(iii)Listing and sale price as agreed between the parties but in default as recommended by the Agent;
(iv)If not sold by treaty within three (3) months then the home be sold by auction to take place within a further two (2) months and re-auctioned until sold each three (3) months;
(v)Reserve price at auction to as recommended by the auctioneer for the first auction 10% (ten percent) less at each successive auction;
(vi)Sale proceeds to be paid to pay;
A.Real estate and legal costs of sale;
B.Rate adjustments;
C.To Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife the amount plus interest required in these Orders;
D.Balance to the Husband.
(vii)Husband to do such acts and sign such documents so as to co-operate in every way with the sale of the home.
(viii)Husband to keep the home neat, tidy and presentable and allow inspection by prospective purchasers.
(3)That pending the sale of the home in accordance with Order 2(b) and from the date of the Orders, the Husband be responsible for all outgoings relevant to the home including but not limited to the payment of water and council rates, water usage, land tax, other taxes (if applicable) and insurance payments.
(4)Except as provided above, the parties are entitled to be the sole legal and beneficial owners, to the exclusion of the other, of all other items of property both real and personal of whatsoever nature and kind in the possession of such party as at the date of these Orders, for this purpose;
(a)The clothing, jewellery, furniture and special effects in the possession of each of the parties are deemed to be owned by the party in possession;
(b)Bank accounts are deemed to be in the possession of the person whose name appears on the Banks’s record thereof;
(c)Insurance policies are deemed to be in the possession of the beneficiary thereof;
(d)Motor vehicles are deemed to be in the possession of the person whose name appears as the registered owner;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(5)In the event that either of the parties fails or neglects to sign with seven (7) days for a written request to do so any document necessary to effect these Orders the Registrar of the Federal Circuit Court is empowered to sign on behalf of such party.
IT IS NOTED that publication of this judgment under the pseudonym Maddox & Merz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 376 of 2013
MS MADDOX Applicant
And
MR MERZ Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application for property settlement pursuant to s.79 of the Family Law Act 1975 (Cth). The Wife is the Applicant. She is 53 years old. The Respondent is her husband, he is 76 years old. Both are of (country omitted) birth. The parties met in (country omitted) in 2005 and married shortly thereafter in (country omitted). The Wife arrived in Australia in 2007, but the Husband had migrated to Australia many years ago. Indeed he had been retired from working at (employer omitted) in (omitted) for 15 years before they met. Both had been previously married. Both have adult children.
Background
2.Both parties had assets at cohabitation, the most significant of which was real estate – his in Property M, unencumbered, hers in (country omitted) subject to a small mortgage that was being paid by her adult children who were in occupation.
3.The parties were in receipt of Centrelink benefits during the marriage. By early 2010 these benefits were reconfigured so that the Wife commenced receiving a carer’s pension relating to the Husband. The Wife travelled to (country omitted) several times during the marriage.
4.The marriage relationship was an unhappy one. This was a marriage late in the lives of each party. One senses that each did not live up to the other’s expectations. He was critical of the role she played in caring for him and the contribution she did not make. She was critical of the abuse she suffered, perpetrated by him, most of which was very demeaning. As the relationship inexorably moved towards separation tensions increased, separation under the same roof commenced, threats were made, the police were called, the Wife eventually moved out in 2013 and these proceedings were commenced. One cannot help but feel the silent presence in the background shadows of adult children.
5.The Husband remained in his home and the Wife moved into unstable accommodation. On 28 October 2013, with some encouragement from the Court, the Husband agreed to pay her $10,000 as a partial property settlement.
6.The Wife seeks orders that the Husband pay her almost $130,000 failing which his home should be sold. He proposed, by contrast, that she merely retain the $10,000 he had paid her. Both positions were entirely unreasonable, and positional.
7.The Wife was at all relevant times legally represented. The Husband chose to become unrepresented shortly before the first hearing date, which had to be vacated because of this. The Wife’s costs of this first hearing were reserved and will be considered as part of any costs application following from the present application. At the hearing the Husband was assisted by a friend, Ms D. Whilst not being legally qualified she was clearly articulate and intelligent and did the best she could to communicate to the Court the Husband’s perspective, and to test the Wife’s evidence. It is quite clear that the Husband could not have presented his case himself.
8.The Wife relied on the following documents:
a)Initiating Application, filed 6 May 2013;
b)Amended Financial Statement, filed 12 June 2014; and
c)Affidavit of Ms Maddox, filed 12 June 2014.
9.The Husband relied on the following documents:
·Response to Initiating Application, filed 28 June 2013;
·Amended Financial Statement, filed 17 July 2014
·Affidavit of Mr Merz, filed 28 June 2013; and
·Affidavit of Ms D, filed 17 July 2014.
The Applicable Law
10.This is an application under s.79 of the Family Law Act 1975 which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) 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.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
11.Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
12.In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the Hugh Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at para. 39 are:
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.
13.The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests’ exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
14.Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.
Credit Issues and Findings
15.The Wife gave evidence. She was cross-examined by Ms D. She gave the impression of being a potentially feisty woman. She was quite assertive in her answers to questions. She made some sensible concessions, for example, about events surrounding their wedding in (country omitted). She was convincing in the witness box. When cross-examined about her allegations of family violence, her answers to the effect that, “I fear him inside my bones” was genuine. It is possible that she has minimised the benefit she received from the financial arrangements during the marriage, especially with her receiving a carer’s allowance. This probably assisted her, directly or indirectly to travel back to (country omitted) to visit family. Overall the Court finds the Wife to be a truthful witness and accepts her evidence.
16.The Husband gave evidence and he was cross-examined by Counsel for the Wife. He was an unimpressive witness, even allowing for the fact that English was not his first language, and that he was elderly and to some extent infirm. A particular feature of the Husband’s evidence was his sarcasm and flippancy. In closing submissions Ms D submitted that these behaviours were largely a cultural construct. The Court does not accept this, in the absence of expert evidence. In any event both parties share the same cultural background, and yet the Wife did not manifest any sarcasm or flippancy in her evidence. The Husband was manifestly unresponsive or evasive about some aspects of his evidence. He was evasive about withdrawals from his savings account though, to his credit, he did concede that some withdrawals were sent to (country omitted) to hide from the Court. He was unresponsive to many issues including payment of legal fees, the use of prostitutes, and use of monies withdrawn from his accounts. He recanted evidence given in his Affidavit, for example, as to who a car was purchased for in (country omitted), and whether money was given to the Wife to travel to (country omitted).
17.The Husband’s use of sarcasm was of concern, because I left the Court quite unsure whether his answers in cross-examination, as sarcastic as they were, were intended to be construed as a full denial of the proposition put to him, a partial denial, or an acceptance of the same. The process used was, in the Court’s opinion, entirely fair to him. He was given ample time to answer and he clarified with the interpreter what was said. He did not immediately respond. He may be elderly, but he did not give the impression of being unintelligent. The sarcasm was frequently accompanied by exaggeration. For example, when it was put to him that their combined pension was, in effect, being used to meet their living expenses he disagreed saying that the Wife spent $350 on cigarettes, the context being a fortnightly expense. When cross-examined about wedding expenses he said, in effect, that it was not a wedding but a christening for the Wife.
18.Of particular concern, however, was the thinly disguised contempt of the Wife that was pervasive of most of his answers. When he was challenged about his use of prostitutes, after a bland denial he said words to the effect that the Wife was the bigger prostitute than the ones that came around. When cross-examined about the Wife’s work in the garden he said she did not do any work at all, and indeed it was only in her dreams that she mowed the lawn. In evidence he agreed he called her “stupid”, “a liar”. His denials about calling the Wife the following names were quite unconvincing: “animal”, “useless”, “livestock from Africa”, “elephant”, “pig”, “animal without a tail”. He agreed that he said to her “you are obligated to stay home” to look after him. He agreed that when they argued he said many things including words to the effect that the Wife should “stand on the corner” at (omitted), the context clearly being prostitution. He openly said in evidence that if she “had a brain in her head” she would still be at home.
19.The Wife deposed that she had received death threats immediately prior to the hearing. The Husband’s denials that he knew anything about this were plainly unconvincing.
20.Wherever the evidence of the Husband and the Wife conflicts, the Court prefers the evidence of the Wife.
The Balance Sheet
21.The balance sheet contended for by the Wife is reproduced below:
| ASSETS | |||||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | ||||
| 1 | Wife | (country omitted) property | E$25,799 | ||||
| 2 | Wife | (omitted) Bank | $9 | ||||
| 3 | Wife | Household contents | $1,000 | ||||
| 4 | Husband | Property M | $260,000 | ||||
| 5 | Husband | (omitted) Bank Term Deposit | $30,938 | ||||
| 6 | Husband | Household contents | $1,000 | ||||
| 7 | Husband | (omitted) Bank Access Account | $0 | ||||
| Total | $ E$318,746 | $ | |||||
| LIABILITIES | |||||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | ||||
| 8 | Wife | (country omitted) – Mortgage | $6,524 | ||||
| 9 | Wife | Loan from Department of Housing | $450 | ||||
| Total | $ $6,974 | $ 0 | |||||
| ADDBACKS | |||||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | ||||
| 10 | Husband | Withdrawals in 2012 & 2013 | $30,510 | ||||
| 11 | Wife | $10,000 payment by Husband | $10,000 | ||||
| Total | $ 40,510 | $ 0 | |||||
22.Apart from item 4, the Husband’s home at Property M, the value of which was established by a single joint expert, the remaining property is valued on the basis of the best available evidence, often the parties’ uncontested assertions of value.
23.Part of the Husband’s case was that the Wife owned other property in (country omitted). The Wife denied this convincingly. The Court accepts her evidence.
24.Item 9 appears to be a loan obtained since separation. Whilst it will be taken into account, particularly as a s.75(2) consideration, it should not appear on the balance sheet.
25.Item 10 is problematic. In cross-examination the Husband conceded that $10,000 was sent to (country omitted) to put it beyond the Court’s reach here in Australia. Whilst the cross-examination did tend to suggest that the Husband withdrew substantial sums in 2012 and 2013, there is no evidence to suggest these withdrawals were inappropriate. Item 10 will be allowed at $10,000.
26.Item 11 should, of course, remain as is. This is the interim amount ordered by the Court to be paid to the Wife. By including it on the balance sheet, the Wife concedes it must be taken into account in this way.
27.The final balance sheet should therefore be:
ASSETS
Ownership Description Court’s value 1 Wife (country omitted) property $25,799 2 Wife (omitted) Bank account $9 3 Wife Household contents $1,000 4 Husband Property M $260,000 5 Husband (omitted) Bank Term Deposit $30,938 6 Husband Household contents $1,000 7 Husband (omitted) Bank Access Account $0 Total $ 318,7466 LIABILITIES
Ownership Description Court’s value 8 Wife (country omitted) – Mortgage $6,524 MONEY TAKEN INTO ACCOUNT
Ownership Description Court’s value 10 Husband Withdrawals in 2012 & 2013 $10,000 11 Wife $10,000 payment by Husband $10,000 TOTAL $ 20,0000
TOTAL NET PROPERTY $ 332,222
Assessing Contribution
28.The husband’s case is that the $10,000 the Wife has already received adequately compensates the Wife for any contribution made.
29.The Wife’s case is that contribution should be assessed in her favour at 20 per cent including a component for contribution being rendered more arduous due to the Husband’s family violence.
30.Both parties came into the marriage with the real estate in their own names. There is no evidence of direct financial contribution to these properties by either of them.
31.The income in the household was entirely Centrelink benefits. The impression formed from the evidence is that for the first few years they lived off the pension the Husband received, presumably at the married rate. From February 2010, however, the Wife appears to have derived a separate benefit which included a component for caring for the Husband. She says, and the Court accepts, this new financial arrangement became a cause for contention between them, with him insisting they live off her benefits whilst saving his. They certainly lived frugally. She managed several trips to (country omitted) to visit family. She says these trips were funded exclusively from savings from her pension, plus Centrelink loans. He says that he assisted in paying the costs. On his part the Husband is probably correct for, if as the Wife asserts, her benefits paid all the household expenses, it is simply not plausible that he did not make some contribution, direct or indirect, to the cost of travel. The impression from the evidence, however, is that this arrangement certainly assisted the Husband to maintain and increase his own savings.
32.The reality is, however, that the Husband contributed both his savings and his home at cohabitation and thus made a vastly greater contribution than she did. This is not to minimise the financial contribution she did make, but rather to view it in context of the overall contributions made. He made no contribution to her (country omitted) property. She made a very small contribution to his property, and arguably a slightly larger one to his savings. Her greatest contribution was as homemaker and as carer for the Husband, a matter recognised through receipt of a carer’s allowance. The Court categorically rejects the Husband’s assertions that the Wife did nothing.
33.Putting aside the issue of whether the Wife’s contribution, such as it was, was made more arduous by the Husband’s course of conduct, the Court assesses her contribution at 10 per cent. This assessment of necessity reflects the short period of the relationship, and the disparity in assets as at cohabitation and separation.
34.The Wife’s case is that such contribution as she did make was rendered more arduous by the Husband’s abusive behaviour, including verbal abuse, denigration and his use of prostitutes when the Wife was present in the home. She argues this calls for a further 10 per cent adjustment in her favour.
35.In Minterly & Minterly [2013] FamCA 418 (4 June 2013), Watts J conveniently summarises the applicable principles relating to what has become known as Kennon claims, at [68] – [73]:
The applicable principles relating to the wife’s Kennon claim
[68] The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:
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, to 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.
[69] In S & S [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated” saying:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
[70] The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.
[71] In S & S, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say:
It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions.
[72] The Full Court in S & S also commented upon the reference to “exceptional cases” and “the relatively narrow band of cases”. The Full Court in S & S adopted the trial judge’s comments that:
…the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
[73] The Full Court in S & S at [47] said:
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
§The incidence of domestic violence;
§The effect of domestic violence; and
§Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to "contribute" as defined by section 79(4).
36.This Court respectfully adopts this statement of principle by Watts J. The Court is satisfied on the facts of the present case that what the Wife experienced is conduct falling within the parameters the Full Court established in Kennon [1997] FamCA 905, as interpreted by the Full Court in S & S [2003] FamCA 905. This Court is satisfied that the conduct in question had the effect on the Wife of making the contribution she did make much more difficult. The Wife’s claim of 10 per cent is just and equitable having regard to the size of the pool of assets and the length of the relationship.
37.Accordingly, the Wife’s contribution is assessed at a total of 20 per cent.
Assessing future needs
38.The Wife contends that her future needs significantly exceed those of the Husband’s and should be assessed at 25 per cent. Close scrutiny of the relevant s.75(2) considerations demonstrates that the Wife has overly focussed on an assessment on her needs, whilst overlooking those of the Husband. It was, with respect, a fanciful claim to make.
39.The Wife is 53 years old, 23 years younger than the Husband. She suffers a number of health issues, as does the husband. She has arthritis, high cholesterol, anxiety and depression. He has hypertension, back problems, cataracts, anxiety and depression. According to his doctor he currently takes at least 12 different medicines daily – which is perhaps unsurprising given his age. Moreover the Wife’s own evidence is that she received a carer’s allowance in respect of the Husband.
40.They both receive modest Centrelink benefits, but the Husband’s is clearly greater than hers. Neither has the capacity to work. They both have demonstrated a capacity to live frugally, but that is much easier for the Husband as he has his own home whereas the Wife pays for her accommodation.
41.Neither party has responsibilities to support any other person. Standard of living is not a relevant consideration. Neither has the capacity to pay maintenance. There are no relevant creditors of any significance. It cannot be said that either has contributed to the other’s earning capacity, and contributions to property and resources have already been considered. Parenting and cohabitation are not relevant factors, nor is child support.
42.The Husband acknowledged the possibility, albeit reluctantly, of being able to ask his adult children to make some funds available to him should the Court’s order otherwise necessitate a sale of the home. It is, in this Court’s view, clearly preferable to avoid a sale of the home if at all possible because this would result, in all likelihood, in both parties being in unstable accommodation, rather than just the Wife.
43.Having regard to all the above matters the Court finds that the Wife does have greater needs than the Husband, but only to the extent of 10 per cent.
Just and equitable
44.If the Wife receives 30 per cent of the available pool of assets, that will provide her with $99,666.60 and the Husband with $232,555.40.
45.The Wife’s current assets and liabilities include:
ASSETS Ownership Description Court’s value 1 Wife (country omitted) property $25,799 2 Wife (omitted) Bank account $9 3 Wife Household contents $1,000 Total $ 26,8088 LIABILITIES
Ownership Description Court’s value 8 Wife (country omitted) - Mortgage $6,524 MONEY TAKEN INTO ACCOUNT
Ownership Description Court’s value 11 Wife $10,000 payment by Husband $10,000 TOTAL $ 10,0000
WIFE’S TOTAL NET ASSETS $ 30,284 46.This means the Husband would need to pay the Wife $69,382.60.
47.The Husband’s assets situation would therefore become:
ASSETS
Ownership Description Court’s value 4 Husband Property M $260,000 5 Husband (omitted) Bank Term Deposit $30,938 6 Husband Household contents $1,000 7 Husband (omitted) Bank Access Account $0 Total $ 291,9388 MONEY TAKEN INTO ACCOUNT
Ownership Description Court’s value 10 Husband Withdrawals in 2012 & 2013 $10,000 TOTAL $ 10,0000
HUSBAND’S TOTAL NET ASSETS $ 301,938 48.Having regard to the payment to the Wife of $69,382.60, the Husband’s assets therefore becomes $232,555.40.
49.The important thing to note here is that, so far as the Husband is concerned, all he has to do is get back the $10,000 he sent overseas, use money he has in the bank now, and find another modest sum of money in order for him to retain his home. Whether he chooses to do this is a matter for him. He will be allowed 60 days to avoid a sale of the home (consistent with the Order sought by the Wife), but given the comparative need the Wife has, he will be required at least to pay her $30,000 within 7 days of this Order. The outcome is as just and equitable as the circumstances of this case allows. The Orders made will reflect the Order proposed by the Wife, amended to take into account matters discussed in these reasons. It is not the role of the Court to correct poor drafting that might contribute to problems with enforcement.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 23 September 2014
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