MAHON & MAHON

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHON & MAHON

[2015] FCCA 510

Catchwords:
FAMILY LAW – Property Settlement – where the parties are in dispute about the date of separation – where three of the parties’ children were born after the date when the husband says the parties separated – whether the property bought by the husband after that date should be considered as marital property – whether the wife should be credited with indirect contributions to property because the husband paid money he ought to have paid in child support to his superannuation fund and property acquisition.

Legislation:

Family Law Act 1975, ss.75,79

The Marriage Act 1961

In the Marriage ofKennon (1997) FLC 92-757
Stanford v Stanford (2012) FLC 93-495
Elias, V.J. and Elias, E.K (1977) FLC 90-267
Tinker v Tinker (1970) 2 W.L.R. 331
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MS MAHON

Respondent:

MR MAHON

File Number:

DGC 2054 of 2013

Judgment of:

Judge Small

Hearing date:

24 September 2014

Date of Last Submission:

2 October 2014

Delivered at:

Dandenong

Delivered on:

13 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Connley, Solicitor

Solicitors for the Applicant:

CONNLEY MCINNES LAWYERS PTY LTD

Counsel for the Respondent:

Mr Howe of Counsel

Solicitors for the Respondent:

WARREN GRAHAM & MURPHY LAWYERS

ORDERS

The properties situated at and known as Property S [1] in the state of Victoria, more properly described in Certificate of Title Volume [omitted], Property S [2] in the state of Victoria, more properly described in Certificate of Title Volume [omitted], and Property W in the state of Victoria, more properly described in certificate of title Volume [omitted], (“the real properties”) be listed forthwith for sale (“the sale”):
(a)by an agent as agreed between the parties but failing agreement as nominated by the President of the Real Estate Institute of Victoria;
(b)by a method as agreed between the parties and failing agreement as nominated by the agent;
(c)at a minimum price or reserve as agreed between the parties and failing agreement at $210,000;
(d)with a settlement period of no longer than 60 days.
The proceeds of the sale shall be applied as follows:
(a)first to pay all costs and commissions of the sale;
(b)second to pay for any minimum necessary repairs or clean-up as required by the agent in order to list the real properties for sale;
(c)third to discharge the mortgage over the real properties;
(d)fourth the sum of $11,400 to the husband’s solicitors on trust for the husband;
(e)the remainder to be apportioned as to:
(i)60% (sixty percent) to the solicitors for the wife on trust for the wife; and
(ii)40% (forty percent) to the solicitors for the husband on trust for the husband.
The husband shall be solely responsible for any debt he owes to his parents, and shall indemnify the wife and keep her indemnified against any such debt.
The husband shall do all such acts and things in his power and sign all such documents as may be necessary to ensure that the caveat number [omitted], currently held by his parents over the real properties, is removed at settlement of the sale.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including but not limited to choses-in-action and real property) in the possession of such party as at the date of these orders.
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 60 per cent to the wife and 40 per cent to the husband;
(c)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named thereon;
(e)each party shall 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;
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(g)each party shall forgo any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

IT IS NOTED that publication of this judgment under the pseudonym Mahon & Mahon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2054 of 2013

MS MAHON

Applicant

And

MR MAHON

Respondent

REASONS FOR JUDGMENT

Introduction

What circumstances constitute an ongoing marriage?
In strictly legal terms, the definition of marriage in Australian law is that it is the union of a man and woman to the exclusion of all others voluntarily entered into for life[1].
[1] The Marriage Act 1961 (Cth) paragraph 5
In practice, marriages may take many forms and can be as varied as the people who enter them. Some married couples live together, some do not, either by choice or necessity (such as work commitments overseas or interstate, or a disability of some kind). Some married couples admit the possibility of relationships with third parties occurring concurrently with the marriage, others are vociferously opposed to such an arrangement. Some marriages produce children and some do not. The variations may be myriad.
A corollary to the question of what constitutes a marriage is what constitutes a separation, and it may be that there are similar variations in relation to that.
A major issue in these proceedings is whether parties can be considered separated if children are born to them after the date when one of them considers that the marriage is over. In this case the question is whether the parties can be considered to have been separated when three of their four children were conceived and born after the date on which the husband says that the parties separated.
The husband, Mr Mahon (“the husband”) and the wife, Ms Mahon (“the wife”) were married in 1999 but the date of separation is in dispute. The husband says that the parties separated in the first half of 2005, but the wife says that they did not separate until 19 March 2012.
The relevance of the date of separation is that the Husband bought a property comprising three adjoining blocks of land in S & W (“the SW properties”) in 2003, and the wife submits that they are part of the pool of assets to be divided between the parties. If the parties separated in 2012, then the issue of her contributions to that property is a very different one than if the parties separated in 2005.
I note that the husband does not claim any entitlement to the property at Property G (“the G property”) which was purchased in the sole name of the wife in February 2008.
The major factual issue in this case is, therefore:
A. Did the parties separate in 2005 or in 2012 and therefore, what was the duration of the marriage?
Once that question is answered, the other issues for decision, as agreed between bar and bench at the commencement of the trial are:
B. What are the property interests of the parties and what is the value of that property?
B.1 How should the court treat the increase in the mortgage debt secured by the SW properties between the date of separation and trial?
C. Is it just and equitable in all the circumstances to alter those interests?
If so:
C.1    What is the quantum of monies advanced to the husband by his parents for legal fees?
C.2    Should the legal costs of the husband incurred during his criminal proceedings be paid from the pool of assets before any distribution between the parties is effected, or from the husband’s share after such distribution?
D. If it is just and equitable to alter the parties’ property interests, what are the contributions of the parties to the property of the marriage?
D.1         What weight should be attributed to the wife’s non-financial contributions to the family through caring for the children of the marriage, including the husband’s two children from a previous relationship?
D.2         What, if any, were the wife’s contributions to the SW properties?
D.3         What, if any, were the husband’s contributions to the G property?
D.4         Should the court make a finding in relation to family violence alleged to have been perpetrated by the husband, and if so, what impact did that violence have on the wife’s capacity to contribute to the property of the marriage?
E. Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?
F. In light of those findings what orders should be made to produce a just and equitable settlement between the parties?

Background

The parties were married on [omitted] 1999 after they had been living together for several months.
They have four children: [W] born [omitted] 2000; [X] born [omitted] 2006; [Y] born [omitted] 2007; and [Z] born [omitted] 2010 (“the children”).
The husband’s two children from a previous relationship, [A] born [omitted] 1995 (“[A]”), and [B] born [omitted] 1997 (“[B]”) (“the husband’s children”) also lived with the family from late 2001 until November 2011 in the case of [A] and July 2012 in the case of [B].
Although there was no specific evidence adduced as to this matter, I infer from other evidence that at least one of the wife’s children from a previous relationship also lived with the parties throughout.
It is apparent from the evidence that the parties did not live together for significant periods of time between the marriage date and the date when the wife says they finally separated, that being 19 March 2012 (“the wife’s separation date”).
The husband says that the parties separated long before that date, in 2005 (“the husband’s separation date”), and that while they continued to have a casual sexual relationship which produced three children after that time, they were in fact separated in every other sense.
Both parties say that they could not live together at times because of personality clashes and relationship volatility (the wife says there was family violence perpetrated by the husband) and both acknowledge that their sexual relationship extended beyond the husband’s separation date.
In any event, the husband purchased the SW properties in May 2003 and the wife purchased the property at Property G (“the G property”) in February 2008.
It is a matter of public record that in 2012, the husband’s daughter [A], who had been living with the parties for much of the marriage, made allegations of sexual abuse against the husband over the previous five years and he was charged with several offences as a result. He faced a two week trial in the County Court of Victoria at Morwell in June 2014, his defence being funded by his parents in the sum of about $42,500, and was acquitted of all charges. Although that case is not relevant to these proceedings in any legal way, the impact of those allegations and their aftermath on the parties cannot be overestimated in these proceedings.
The other way in which those proceedings are relevant to these is that on 5 August 2014, some six weeks prior to this trial, the husband and his parents signed a document which was included an equitable charge over the SW properties and on the basis of that document the husband’s parents have placed a caveat over those properties.
Initially, there was a dispute between the parties in relation to a property in L, which is registered in the names of the husband’s parents, but the wife’s claim in relation to that property was abandoned at trial.
The parties were divorced on the Application of the wife on 2 October 2013.

Procedural History

On 29 July 2013 the wife filed an Application for Divorce in which she deposed that the date of separation was 19 March 2012. She further deposed that she had regarded the marriage as over on that date but she left blank the section stating whether the husband shared that belief. The husband did not file a Response to that Application and a Divorce Order was made on 2 October 2013.
On 31 July 2013, the Wife filed an Initiating Application seeking both parenting and property orders.
The parenting dispute was resolved on the first day of trial by way of consent orders. In those circumstances I do not intend to refer to parenting matters in these reasons other than as they are relevant to the property proceedings.
The property orders sought by the wife provided for the property of the parties to be sold and the proceeds distributed between the Wife and the Husband in such proportions as the court deemed appropriate.
The proceedings first came before Judge O’Sullivan in the Duty List on 4 September 2013 at Dandenong and orders were made by consent providing for the Husband to make, file and serve his Response, together with an affidavit and sworn Financial Statement, and for the parties to attend a Conciliation Conference on 29 October 2013.
On 24 October 2013, the Husband filed his Response in which he sought for the Application of the Wife filed on 31 July 2013 to be dismissed insofar as it related to an application for a property settlement or financial orders.
On 29 October 2013, the parties attended a Conciliation Conference. No agreement was reached on that day and the Wife was ordered to file and serve her sworn Financial Statement by 8 November 2013.
On 14 November 2013, the proceedings returned to Court in the Morwell Circuit before Judge O’Dwyer when the matter was adjourned for a Final Hearing on 3 March 2014.
On 3 March 2014, the parties appeared before Judge Phipps. On this day, the matter was again adjourned for Final Hearing on 30 June 2014.
On 30 June 2014, the parties appeared before me but the matter was not reached. Procedural Orders were made setting down the matter for Final Hearing on 24 September 2014 in the Morwell Circuit.
On 24 September 2014, the parties appeared again before me for Final Hearing.
The trial proceeded over two days in relation to property issues only with the parties as the sole witnesses, and the matter was then adjourned to 2 October 2014 for final submissions.
In the course of the trial, and after some discussion between both ends of the bar table and the bench, I granted certificates to both parties under s.128 of the Evidence Act 1995 (Cth).
Once counsel had made final submissions on 2 October 2014 I reserved my decision.

The Issues and the Evidence

A. What was the duration of the relationship and marriage?

The first thing that must be said at this stage is that neither party was a particularly reliable historian in terms of times and dates of events at trial, the husband in particular finding it difficult to remember such details. However, they both gave the impression that they tried their best to answer questions in relation to these matters and I can only consider the evidence before me.
In her first Affidavit, sworn 26 June 2013 and filed 31 July 2013 (“her first affidavit”), the wife deposes that her relationship with the husband began early in 1999.
In that Affidavit she refers to “the periods that the respondent and I were living under different roofs”[2] but doesn’t elaborate as to when those periods were.
[2] Affidavit of Ms Mahon sworn 26 June 2013 and filed 31 July 2013 paragraph 40
It must be said that most of her first Affidavit addressed parenting issues.
However, in the trial affidavit of the wife sworn 20 June 2014 and filed 24 June 2014, the mother essentially repeats the evidence of her first affidavit but then deposes as follows:
22.    Our relationship was extremely intense. We both had a volatile natures and over the years we found that we could only manage our emotional swings and conflict if we lived in separate homes but with one or other staying over at the other’s home so that we could maintaining (sic) our sexual, social, personal and financial relationships. To the best of my recollection we lived lied (sic) this in the periods:
22.1      October 2002 - March 2006
22.2      April 2007 - January 2008
22.3      April 2008 to 9 (sic) March 2012
For the remainder of the time prior to final separation we lived together.[3]
[3] Affidavit of Ms Mahon sworn 20 June 2014 and filed 24 June 2014 paragraph 22
Thus, it is the wife’s evidence that in the 13 years or so that the parties were married (if her separation date of March 2012 is accepted), the parties lived together for a total of four years and nine months[4], and apart for eight years and four months. Of the four years and nine months that the parties lived together, more than four years were at the beginning of the relationship before any separation had taken place.
[4] Early 1999 to October 2002 (three years and five months); March 2006 to April 2007 (13 months) and January to April 2008 (three months)
By my calculations, looking at the birth dates of all four children, only [W] was conceived during a period when the parties were living together.
At trial, the mother gave evidence under cross-examination, the essence of which in relation to this issue being:
·    in about 2005 she moved into flats in [omitted] and stayed there for 6 to 12 months
·    she then moved to [omitted] for a period she could not recall
·    she then lived in Housing Commission accommodation in [omitted] for an unspecified time
·    she then lived with the husband in the SW properties for six months (and she was adamant about that despite it being put to her that she had lived at the SW properties for only two months)
·    after that she lived in [omitted] for less than six months
·    she then moved to [omitted] before moving to her current premises in G in 2008.
It was her evidence that she had first applied for a Single Parent Benefit from Centrelink in perhaps 2004, but that she had informed Centrelink at that time that she was “living on my own” and not that she was separated. She was adamant that Centrelink was well aware of her living situation at all times when she was receiving government benefits.
She acknowledged that she had ceased to receive the single parent benefit for the months when she was living at the SW properties and that she had again obtained that benefit when she left the SW properties. She conceded that when she left the SW properties in 2007 she had told Centrelink that she was indeed separated and that that had been the truth.
Under further cross-examination the wife said that she had moved into the SW properties with the husband when their daughter [X] was six months old in about December 2006.
The husband’s evidence in relation to this issue is found in his affidavit sworn 24 October 2013 and filed 25 October 2013 (“his first affidavit”), in his affidavit sworn 19 September 2014 and filed 24 September 2014 (“his trial affidavit”) and in his oral evidence given at trial.
He says that the wife had been able to obtain the single parent benefit immediately on leaving the SW properties, and that Centrelink policy means that one is only able to do that if a period of reconciliation has been less than three months. That is, his evidence was that the wife cannot have been living with him at the SW properties for more than three months.
The husband’s first Affidavit, sworn 24 October 2013 and filed 25 October 2013 (“his first Affidavit”), says this in relation to the date of separation:
I note that Ms Mahon suggests that she and I separated on the 9^th of March 2012. In fact we have been living separately and apart since at least 2005. Although it is true that the Respondent and I had a casual “on and off” relationship following our separation we did not live together in that time and were financially independent of each other. Ms Mahon received a Sole Parents payment or its equivalent from Centrelink during most if not all of that time.
He goes on to say that Ms Mahon acquired the property in G after the parties had ceased living together, and that it is his understanding that she was able to do so with the assistance of the First Home Buyer’s Grant.

In his trial affidavit, sworn 19 September 2014 and filed 24 September 2014 (“his Trial Affidavit”), the husband repeats his assertion that he and the wife have been separated since at least 2005 and that they have been financially independent of one another since that time.
He says further:
The applicant herself in a statement made to police (concerning [A]’s allegations) on 14 April 2014 said “Since we separated in 2007 [Mr Mahon] and I haven’t lived in the same house”. I say that the relevant time was actually 2005.
The wife conceded at trial that she had made that statement to the police.
At trial the husband gave evidence that there were times when he too was receiving the Single Parent Benefit and Family Tax Benefit. It was his evidence that those benefits were received for his care of [A] and [B] and perhaps a small amount for [W]. He said that after separation all the children essentially lived in an equal shared care arrangement with him and the wife. He said that while the parties were living apart he assisted the wife financially whenever he could but that basically he supported his household and she hers.
It was the husband’s further evidence that he had shared the SW property in 2009 -2011 with what he called “boarders” who paid about $75 per week to assist with utilities and living costs.
He gave evidence that in about 2009 there was some discussion between the parties of moving back in together, he says at the wife’s property. The husband said that the wife was finding it difficult to cope with four children and wanted him to move into her home.
However he gave further evidence that she had changed her mind shortly before the move was to have taken place and that at that time he sought to have her sign an agreement that each of them would retain his or her own property and make no claim to the other’s. He said the reason for the wife changing her mind was that she had “wanted her independence”.
A Child Support Payee Transaction Statement tendered by the wife and covering the period 1 February 2010 to 15 September 2014 makes clear that the husband was paying some child support from at very least 8 February 2010.
Under cross-examination at trial the husband was shown a copy of his Application and Summons for an Intervention Order dated 29 August 2012. That Application states that the Respondent to the Application was the wife and that the parties had been separated for five months.
When asked under re-examination what he had meant when he said in August 2012 that the parties had been separated for five months, the husband’s evidence was that it was five months previous to that date when the wife had told him that she wanted him “out of her life fully”. Until that time they were still in touch, he had stayed at her house from time to time, and the wife had been supportive during his criminal proceedings to that point. He was adamant that apart from the short period of time in 2007 when the parties had lived together at the SW properties, they had been separated since 2004 (sic).
When asked later how he would describe the nature of the relationship with the wife after the date of separation the husband said:
I would go to her house, visit her. She would come to my house sometimes, visit me. You know, she would invite me over to stay at her house sometimes – that sort of thing. If she needed a hand with the kids, I would stay at her house for a couple of days. Sometimes she would ring me up at like 11 o’clock at night because one of the kids were crying and I would go and see her. There were times like that and there was, yes, other times where she just didn’t want me around at all, didn’t want to see me.
And so we come to the question: did the parties’ living arrangements after 2005 mean that the marriage continued until the date of final separation in March 2012, albeit in an unorthodox form, or did those arrangements constitute a separation followed by an “on-again off-again” relationship which involved at least one period of joint residence at the SW property?
In his closing submissions, counsel for the husband referred the court to the decision of Elias and Elias[5] (“Elias”), a decision of Goldstein J in the Family Court of Australia in 1977.
[5] Elias, V.J. and Elias, E.K (1977) FLC 90-267
In that case, a husband who ran a smash repair business and who claimed for taxation purposes that his wife was a partner in the business, had asserted in the Family Court that the wife had taken no part in the business and had not contributed to it. Therefore, said that husband, the wife was not entitled to claim any part of the business.
After quoting several passages from the English Court of Appeal case of Tinker v Tinker (1970) 2 W.L.R. 331[6], His Honour found that the smash repair business was the property of the parties as partners, thus finding that the husband in Elias could not “be heard to say to the Commissioner for Taxation that the smash repair business is half his and half his wife’s and yet to say to her and this Court that it is all his.”[7]
[6] In that case a husband who had placed a house in the name of his wife in order to quarantine it from the claims of creditors, then sought to have it included in the marital property pool under the (English) Married Women Property Act, saying that his wife held the property in trust for him. The Court held that he could not be heard to say that it now belonged to him because that would allow him to take advantage of his own dishonesty.
[7] Elias supra page 76,424.
Counsel’s argument in this case is that the wife cannot be heard to say to Centrelink at various times since 2004 or 2005 that she is separated from the husband and is therefore entitled to a single parent’s benefit, and then to say to this Court that she and the husband remained married until March 2012.
The wife’s evidence at trial on that issue was that when she and the husband were living separately he refused to support his family and that therefore she was forced to seek financial support from Centrelink. She gave evidence that Centrelink was well aware of her ongoing relationship and marriage with the husband throughout that period and that she was permitted to receive Centrelink benefits as a single parent nevertheless. I must say that I am sceptical about the latter portion of that evidence and indeed find it improbable that Centrelink would knowingly have paid the wife a Single Parent’s Benefit if they had known that the wife considered herself to still be married and in an ongoing relationship with the husband.
I am also extremely sceptical that the Child Support Agency would be collecting child support in 2010 for children whose parents had not separated.
Further, the evidence of the statement the wife gave to the police in the context of the husband’s criminal proceedings only months before the trial of this case, should in my view be treated in similar fashion.
In other words the wife cannot be heard to say to Centrelink, the Child Support Agency, and to the police in a signed statement that she separated from the husband as early as 2005, and then say to this Court that she was not separated until 2012.
The further evidence of the husband purchasing property in his own name in 2005 and the wife following suit in 2008 adds weight to the view that the parties were indeed separated at least from 2005.
Clearly they maintained some kind of intimate relationship after that date as is shown by the birth of three of their four children after that date and the fact that there were short periods of time when they lived under the same roof. However in my view the birth of children alone, when balanced against other evidence, is not on its own proof of an ongoing marriage.
Therefore, as a matter of fact, I find on balance that the parties separated in 2005.
That is not to say that I believe that the wife is lying to the Court when she says that she believes that her marriage endured until 2012. It is perfectly possible for one party to a relationship to believe that the relationship in its originally intended form has ceased while the other party believes it to be continuing.
So, for the purposes of these proceedings, the relationship and marriage of these parties lasted from late 1998 or early 1999 to early 2005, a period of about six years.

B. What are the property interests of the parties and what is the value of that property?

The legal property interests of the parties may be set out as follows:
·    The SW properties registered in the name of the husband and valued at $210,000, those properties being encumbered by a mortgage of $93,000, thus having a net value of $117,000
·    The G property registered in the name of the wife and valued at $110,000, that property being encumbered by a mortgage of $79,000 thus having a net value of $31,000
·    The wife’s car valued at $5000
·    The husband’s cars and caravans valued at $5000
The net value of the party’s legal property interests, excluding superannuation entitlements, is therefore $158,000.
· The husband has superannuation entitlements of $40,067.
· The wife has superannuation entitlements of less than $2000.
The wife claims an interest in both the SW properties and the husband’s superannuation entitlements because, she says, the husband applied monies to the purchase and maintenance of the SW properties and to private contributions to his superannuation entitlements which he ought to have applied to maintenance for her and the children. Thus, she says, she has made indirect financial contributions to the SW properties and the husband’s superannuation entitlements, as a result of which he effectively holds part of them on trust for her.
I do not think it necessary to decide whether the claim by the wife gives rise to an equitable interest in the SW properties or the superannuation entitlements as the issue of her alleged indirect contributions can be addressed under issue D below.
It is almost trite to say that the debts or liabilities of the parties may also form part of the property to be divided between them.
Both parties say they have credit card debt, but given that there is no evidence of what the level of that debt was at the time of separation in 2005, and the likelihood that it would all have been accrued since that time, I do not consider it to be part of the current property of the marriage.
As a result of the allegations made against the husband by his daughter [A] in 2011, and the Intervention Order Application of the wife in 2012, the husband incurred significant legal costs which, he says, were paid by his parents in the form of a loan to him.
There was evidence given at trial that the husband had signed a loan agreement with his parents in the weeks before this trial and that his parents had placed a caveat over the SW properties to secure that debt.
One of the issues I was asked to decide in this matter is the quantum of those costs and whether they should be paid from the pool of assets before any distribution between the parties is effected, or from the husband’s share after such distribution.
It is my view that those costs are not the debt of the parties to these proceedings but of the husband alone, as they were incurred well after the parties separated and no evidence was given at trial of the wife having had any part in him incurring them.
It is therefore not necessary for me to quantify the debt owed by the husband to his parents as it does not form part of the marital pool of assets to be distributed in these proceedings. However, I note that the husband says that that debt stands at about $45,000.
While the debt does not form part of the property of the marriage, I nevertheless will take that debt into account as a s.75(2) factor in relation to the husband.

B.1. How should the court treat the increase in the mortgage debt secured by the SW properties between the date of separation and trial?

As I have found that the date of separation was in early 2005, and it is common ground between the parties that the SW properties were purchased in April and May 2005, it could be said that the whole of the mortgage debt attached to those properties has been accrued since the date of separation.
This question involves similar facts and issues to those posed in part D of these reasons below and I will therefore consider that question at that point.

C. Is it just and equitable in all the circumstances to alter the parties’ interests in their property?

The law in relation to property settlements between parties to a marriage is found in Part VIII of the Family Law Act 1975 (“the Act”), and more particularly in s.79.
Section 79(2) of the Act states that the court must not make an order under this section (that is, an order altering the property interests of the parties) unless it is satisfied that, in all the circumstances, it is just and equitable to do so.
In relation to that section, in Stanford v Stanford[8], the High Court of Australia made clear that the determination of whether it is just and equitable to alter the parties’ property interests must be made before any consideration of the matters set out in s.79(4) is undertaken.
[8] Stanford v Stanford (2012) FLC 93-495
In considering what “just and equitable” means, the High Court made following observations at paragraphs 36-42:
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not to “be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law"[26]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.
Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[28]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
In other words, once the property interests of the parties have been determined, the question of whether those interests should be altered is not to be answered by assuming that the court should do so simply because the parties were married. Such an answer must be based on sound legal principles with reference to the provisions of the Act.
The High Court went on to say, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
In Bevan & Bevan the Full Court said that the circumstances described in the that passage of the Stanford judgment “encapsulate the vast majority of cases”[9] .
[9] Bevan & Bevan [2013] FamCAFC 116 paragraph 70
In this case, the parties were in a relationship and marriage for about six years. I am not aware of whether either party had been married previously, but both had children from previous relationships.
The parties, who no longer live in a marital relationship, own property in relation to which there is no “common use” by the husband and the wife.
I therefore find pursuant to section 79(2) of the Act that it is just and equitable in all the circumstances to alter the property interests of the parties.

D. If it is just and equitable to alter the parties property interests, what are the contributions of the parties to the property of the marriage?

D.1 What weight should be attributed to the wife’s non-financial contributions to the family through caring for the children of the marriage, including the husband’s two children from a previous relationship?

It is not in substantial dispute that the wife made non-financial contributions to the family in the form of caring for all of the children of the marriage, her two children from a previous relationship, and the husband’s two children from his previous relationship for significant amounts of the time both during the marriage and post separation.
It was her evidence that [A] and [B] lived with the family for about 10 years, which includes considerable time after the parties’ separation. That evidence was not contradicted by the husband.
She says that the husband paid minimal if any child support post- separation, although he did provide some ad hoc support to the family from time to time. She says that the financial burden of caring for the children fell primarily to her. This is despite her own evidence in the form of the tendered Child Support Payee Transaction Statement which shows regular payments by the husband to the Child Support Agency, albeit in less than regular amounts, from at least February 2010.
The husband says that the parties cared for the children essentially on an equal shared care basis after separation, although it was also his evidence that he was working on and off during that period.

The contribution of “stay-at-home” mothers to the welfare of the family should never be underestimated and I am satisfied that the majority of the children’s care, including the care of the four children who were not the children of this marriage, was performed by the wife both during the marriage and after separation. I will give appropriate weight to the wife’s contribution in that way when making orders.

D.2 What, if any, were the wife’s contributions to the SW properties?

In the wife’s Outline of Case document filed on 23 September 2014, she concedes that the husband “made all payments made in respect of the SW properties”.
However, under cross-examination at trial, she said that while she was living at the SW properties for what she says was six months, the mortgage payments were “divided” and paid from the parties’ joint income.
However, in other evidence the wife says that she had moved into the SW property when her daughter [X] was six months old. There is no evidence that the wife was working at that time or that she was in receipt of the Single Parent Benefit. It is therefore likely that her only form of income would have been the Family Tax Benefit.
The husband insists that the wife only ever lived at the SW properties for about a month. In his first affidavit he says that the wife “never made any financial or con non-financial contributions towards a property in any way at all.”
In support of his assertion that the wife did not live at the SW properties for more than about a month he says that she was able to obtain the Single Parent Benefit immediately upon moving out, and that Centrelink policy is that she would have been unable to do that had she been living with him (and thus not receiving the benefit) for more than three months.
That proposition was not challenged at trial, and on balance I find that the wife lived with the husband and children at the SW properties for up to 3 months in late 2006 and/or early 2007.
The mortgage payments made by the husband were not always regular and it was the wife’s case, based on her belief that the date of separation was in March 2012, that his failure to do so had diminished the parties’ equity in the SW properties. Therefore, she says, he alone should be responsible for the increase in the mortgage loan between what she believed to be the date of separation and the date of trial.
However, as I have found that the date of separation was in 2005, and that therefore all direct financial contributions to the SW properties, whether positive or negative, were made by the husband, I do not accept that argument.
In her trial affidavit, the wife deposes that she made the following non-financial contributions to the SW properties:
54.1 Helped build the fences to the three allotments
54.2 Helped pour concrete for the shed and car storage area
54.3 Helped make fishing nets, the proceeds of sale of which paid for the shed and the car port
54.4 Painted the SW house interiors
54.5 Helped lay the carpets
54.6 Mowed lawns
54.7 Cleaned and maintained the home[10]
[10] The wife's trial affidavit paragraph 54
That specific evidence was not contradicted, nor even addressed at trial, and I therefore find that the wife did make some minor non-financial contributions to the SW properties after separation.
Nevertheless, the mother’s case is that she also made indirect financial contributions to the SW properties in that at least some of the monies the husband did contribute to the purchase price, improvements and the mortgage payments on those properties ought to have been paid to her in the form of child support and spousal maintenance. As they were not, she says those unspecified amounts should be seen as indirect payments by her.
In my view this argument could be seen as a retrospective application for spousal maintenance covering a time when the wife says that she was still married to the husband. The absurdity of that argument is obvious in light of the discussion of the Elias principle in paragraphs 64 to 72 of these reasons.
Even if I considered that argument as applying only to the period between March 2012 and trial, the wife would have to show that she was entitled to spousal maintenance for that period. There is no evidence before me that she has made any attempt to seek such maintenance.
Her Initiating Application filed 31 July 2013 seeks 5 orders, only one of which is in relation to financial matters. That order says simply, “That the property of the parties be sold and distributed between the wife and husband in such proportions as the court deems appropriate.”
Furthermore, in a document headed “Final Property Orders as Proposed by the Wife 02-10-14”, which was handed up on the date of final submissions by counsel, the first order sought is a declaration that “Section 77A of the Family Law Act 1975 does not apply”. I interpret that as meaning that if I were to order that the wife receive property and/or cash as a result of these proceedings, then the value of that property and/or cash should explicitly not be considered as lump sum spousal maintenance.
It would therefore be drawing a very long bow indeed to consider unpaid spousal maintenance for which the wife had never applied as an indirect financial contribution to the husband’s property. I do not intend to draw that bow.
In my view any argument that such indirect contributions were made via unpaid child support payments is even more tenuous, as again the wife would have to prove that she was not receiving child support at that time, and apart from assertions to that effect, she has not done so. Indeed what evidence she does provide speaks to the contrary.
In any event, it is my view that an argument that a parent ought be directly compensated for unpaid child support in a property settlement stands on very thin ice indeed, despite the payment of child support being one of the factors to be considered under s.79(4) in so far as it incorporates s.75(2) of the Act.
Therefore, overall, I find that the wife made contributions to the SW properties post separation in the form of some labour performed on the maintenance and improvement to those properties.

D.3 What, if any, were the husband’s contributions to the G property?

In his trial affidavit the husband deposes that about six months after the wife acquired the G property (which occurred in 2008) he paid her the sum of $8000 by monthly instalments of $1000, those monies being intended for application to the improvement of the G property. He says that she applied that money to “re-flooring and other improvements including improvements to the bathroom and toilet”.
It was put to the wife at trial that that $8000 was a property settlement privately agreed between the parties at that time.
The wife denied that the husband had ever given her the sum of $8000 although she did acknowledge that he had performed some labour on renovations to the kitchen and the bathroom. It was her evidence that she had bought the materials for those renovations although she does not say how she paid for them. She says only that she was working part-time, that she wasn’t on benefits, and that the kitchen was bought second hand for the husband to install. She also acknowledged that he replaced the toilet and installed a door in the bathroom, but denied that he had performed any painting. Her evidence was that his material contribution to the property was in the form of “some leftover carpeting from a friend and some lino from his mum that had been sitting in her basement for 10 years”.
In circumstances where there does not appear to be any concrete evidence of the husband’s alleged payments, but where the wife provides no specific evidence in relation to her alleged payments to the renovations, and she acknowledges what must have been significant contributions to those renovations in the form of labour, I find that the husband did make some contributions to the G property.
However, significantly, I note that the husband does not make specific claim to the G property.
In his first affidavit sworn 24 October 2013 and filed 25 October 2013 the husband says this:
I did assist Ms Mahon from time to time improving the property; including help build an extension, fixing floors, kitchen cabinets and the like. Nevertheless, I am happy for Ms Mahon to retain this property as her sole property.
And in a document marked “Orders Sought by the Husband” which was handed up at trial, he sought only the sale of the SW properties with particular orders as to the distribution of the proceeds, and a superannuation splitting order, with the parties otherwise retaining “property currently in their possession including but not limited to choses-in-action, money in bank accounts, real property[11] and chattels”.

D.4 Should the court make a finding in relation to family violence alleged to have been perpetrated by the husband, and if so, what impact did that violence have on the wife’s capacity to contribute to the property of the marriage?

[11] Emphasis added

The wife alleges that she was the victim of “extreme verbal, physical and psychological violence” at the hands of the husband throughout the relationship and marriage. In her first affidavit she describes their relationship as “extremely intense and we both had volatile natures”.
In her first affidavit the wife deposes as follows:
28.0 The applicant’s drinking, and its impact on his behaviour and the financial hardship that it was causing the children and I was a source of constant dispute between us. Whenever he drank – which was daily he became abusive and would stand over me, taunting me about my suffering from depression, anxiety, boasting of his frequent extramarital affairs and using the threats of further affairs to coerce me into unwanted sexual activity with him.
29.0 On a great many occasions – about once a fortnight over the whole of the relationship, the respondent would keep at me until I became so upset that I would try to push him away or slap him. Immediately I did this the respondent would attack me variously throwing me to the floor and sitting on me, punching me, and/or choking me. On one occasion he jumped into my car and drove it into the gateway scraping it along its entire side. On another he smashed the windscreen with a shovel.
In her trial affidavit the wife repeats the above evidence and adds the following statement:
40.0 The respondent seemed to enjoy the terror that his behaviour invoked in both myself and the children and as they grew older his behaviour grew steadily more violent and abusive.
And further:
44. The children have all been significantly traumatised by the respondent’s verbal, psychological and physical abuse and the burden of caring for them has been increased significantly as a consequence.
On 10 April 2012 the wife lodged an Application and Summons for an Intervention Order against the husband, alleging that he had been harassing her by text message, telephone calls and Facebook messages, that he had smashed her car windscreen with a shovel because she would not resume their relationship, and that while she was seven months pregnant he had visited her home in an intoxicated state and forced her to have sex with him.
On that same date, an Interim Intervention Order was made naming as Affected Family Members the wife and all four children of the marriage, [B], and the wife’s then 14-year-old daughter, [C]. I note that that order was made ex parte. That order was made final on 4 September 2012 with the husband consenting without making any admissions in relation to the allegations in the complaint, and expired on 30 September 2013. The wife deposes that there were no breaches of that order.
On 29 August 2012 the husband lodged an application and summons for an intervention order against the wife alleging, among other things, that the wife suffered from bipolar disorder Type 2, that she had sent threatening messages to his mother and 15-year-old daughter, that he believed she was responsible for damage done to his vehicle and house by “badmouthing me”, that she had physically attacked him by punching, kicking, “kneeing” and scratching him and trying to break his fingers. Further allegations included that the wife had threatened to harm both the husband and herself with a knife, that she had smashed his car with a baseball bat and his phone with a hammer, and that she had stalked him by posting negative comments about him on Facebook.
That application was resolved by the wife providing an Undertaking on 4 September 2012 with what she refers to in her first affidavit as “a denial of the matters alleged”, that Undertaking to last until 30 September 2013.
At trial under cross-examination the following exchange took place between counsel for the husband and wife:
Counsel: I suggest to you that during the relationship… you were more violent than the husband towards him than he was to you. What do you say to that?
The wife: He knew how to push my buttons.
Counsel: So you agree with it. Do you agree with me…?
The wife: No. I don’t.
Counsel:… And say it’s because you have anger problems. You had anger problems?
The wife: My husband cheated on me many, many times and my reaction was to get angry. And then he reacted with violence.
Counsel: So the violence was not one sided was it?
The wife: Not always.
Counsel: On one occasion, you took to his car with a baseball bat?
The wife: He told me to do it. He cheated on me with my best friend and said “take my baseball bat and go hurt my baby as much as I hurt you”.
When asked by her own counsel in re-examination what she had told Centrelink when she applied for benefits during the times when the parties were not living together, the wife said: “that we were separated and couldn’t live under the one roof because of the violence and the drinking”.
Under further questioning the wife said the following about what she had meant when she said the husband knew how to “push her buttons”:
It’s kind of hard to explain. Because of the infidelities I had a very low self-esteem, and if I was getting obsessed as he called it, or calling him and trying to check where he is and that, he would get really really aggro at me, which would make me aggro in return, because all I wanted to know was that he was not out cheating on me again. That was one of the ways. The other way would be him drinking to excess and not helping with the kids.
She described her own violence as taking the form of slapping, pushing the husband, and punching him in the arm. She said his response to that behaviour was “to – as he would call it – restrain me”.
When asked to explain what she meant she said the following:
I guess sat on me to stop me from being able to move. He grabbed hold of me – grabbed me around here really, really tight so I couldn’t move and it would really hurt and he’s grabbed me by the throat and punched me quite a few times.
When asked how often that had happened the wife said
The extreme stuff – not very often but the pushing and shoving – at least weekly, usually after drinking.
She acknowledged that both parties would “push” the other and that while she would often drink alcohol, the husband drank to excess.
The husband does not mention the issue of family violence in his first Affidavit at all.
In his trial affidavit the husband denies that he is an alcoholic or that he drinks heavily “on a near daily basis”. He further denies the allegations of physical or emotional and sexual abuse made by the wife, and specifically the allegation of “frequent drunken and verbal and physical outbursts”.
Those are the only statements made in relation to family violence in either of the husband’s affidavits.
At trial, when asked by his own counsel about the evidence of the wife on this issue the husband said the following:
I don’t remember doing any of them (sic) things. I remember we did fight and have arguments and at some times it used to get heated. With [Ms Mahon] sometimes it did get violent and unfortunately I did restrain her sometimes by trying to cuddle her and calm her down and sometimes hold her wrists so she would stop striking at me. A lot of the time she would stand in front of the door and wouldn’t let me out of the bedroom. She would get distressed and upset and sometimes head-butt the wall and stuff like that and a lot of the time we used to end up both on the floor cuddling – I always used to cuddle her and tell it would be all right and I loved her and – yes it was very horrific but that usually happened in the bedroom away from the kids when we used to have arguments.
When asked why the parties could not live together he said:
Our personalities clashed a fair bit. Ms Mahon was a bit highly strung and emotional and we would fight. We loved each other, but we just – it just didn’t work. I wanted to be with her, but she was a bit resistant, and then other time she would want to be with me, and I was a bit funny about it because we used to fight so much.
What is clear from this evidence is that the relationship between the parties was volatile and at times physically violent to a significant degree, and that it continued to be so well after the parties had separated.
That the husband and wife have different views about that violence is unsurprising, but neither denies that he or she committed acts which can be characterised as constituting physical and emotional family violence.
I therefore find as a matter of fact that both parties committed acts of family violence against each other during and after the relationship and marriage, and that the four children of the marriage have grown up in that atmosphere.
What is not absolutely clear from the evidence is whether one party was more responsible for that violence than the other. I can say however that family violence of this kind has a deleterious effect on both parties.
The wife asks me to find that her experience of family violence at the hands of the husband was so severe as to make her contributions to the family and to the parties’ property more onerous.
In the Marriage ofKennon[12] (Kennon) is authority for the proposition that family violence is a relevant factor in determining a party’s contribution under s.79 of the Act.
[12] (1997) FLC 92-757
To satisfy the Kennon criteria, a party must prove, on the balance of probabilities, that he or she was subject to a violent ‘course of conduct’ during the marriage, which had a ‘significant adverse impact’ upon the party’s contributions or, in the alternative, which made those contributions ‘significantly more arduous’[13].
[13] Australian Law Reform Publication ALRC CPS 1, chapter 9.
On the evidence before the court there is little doubt in my mind that both parties were responsible for the violence to some degree, and that the contributions of both to the welfare of the family must have been inhibited by that violence. As it appears that the wife has had the major burden of caring for the children of the marriage, I find that the violence committed against her would have made her contributions “significantly more arduous” than those of the husband, as she was less able to escape while the children were in her care.
On the basis of all the foregoing evidence I find that the contributions of the parties to the current property of the marriage was approximately 70% to 30% in favour of the husband. Each worked when they could, and after separation each essentially paid for his or her own house and improvements to it, albeit with non-financial assistance from the other. The difference is in the quantum of the financial contributions of the husband to the SW properties.
Their contributions to the welfare of the family have not been equal either. I do not accept that the husband’s evidence that he and the wife shared the care of the children equally either during or after the marriage, although I accept that the children were in his care for significant periods of time. I find therefore that when I take that fact into account, as well as the family violence issues mentioned above, the financial and non-financial contributions of the parties to their assets have been approximately 60% to the husband and 40% to the wife.

The wife also claims a share of the husband’s superannuation entitlements accrued until March 2012, and as I understand her argument, even though I have found that the parties separated in 2005, she makes the same claim to contributions to those entitlements in the form of indirect financial contributions as she makes in relation to alleged similar contributions to the SW properties.
In other words she says that the husband voluntarily deposited money to his superannuation account when he ought to have been spending that money on maintenance for her and the children. I note that the evidence shows that the amount of money voluntarily deposited to the husband’s superannuation account between 5 July 2009 and 19 February 2014 was $3700, and that his current entitlements are worth about $40,000.
For the reasons set out above in paragraphs 110 to 123 above, that argument must fail. Therefore, the only portion of the husband’s superannuation entitlements to which the wife can lay claim in any contribution sense is that which was accrued between 1999 and 2005.
The documentation in relation to the husband’s superannuation entitlements is, to say the least, deficient. There is no documentary evidence before the Court that the husband had accrued any superannuation entitlements before about June 2009, although it is highly likely that some of his entitlements did accrue before that date.
In those circumstances it is impossible to quantify the wife’s indirect contributions to the husband’s superannuation entitlements between 1999 and 2005. I can therefore make no finding in relation to those contributions although I will certainly take the husband’s superannuation entitlements into account when considering the factors set out in s.75(2) of the Act.

E. Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?

Section 79(4) of the Act states that when making orders adjusting property interests as between married parties, the Court must consider the matters set out in s.75(2) as well as the contributions the parties have made to the property.
Section 75(2) states as follows and I shall address each matter in turn:
Section 75(2) (a) the age and state of health of each of the parties
The husband is 40 years old and the wife 34. There is no evidence before the court that either suffers from any particular health issues.
Section 75(2) (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
The husband works for his parents in the [omitted] business and evidence before the court shows that he earns approximately $450 per week, although the wife alleges that he receives cash in hand payments and other benefits from that work. As no evidence has been presented to the Court of those payments I cannot take them into account.
He owns the SW properties in which she holds equity of about $117,000. He also has about $40,000 in superannuation entitlements.
There is no evidence before the court of anything which might inhibit the husband’s mental and physical capacity for future employment, although it was his evidence at trial that his parents’ business had declined since 2010 and that his future employment was somewhat uncertain. I note that documents tendered in evidence by the wife show that his income dropped from an average of about $830 per week in 2013 to $450 per week in 2014.
The wife’s income is from Centrelink benefits in the form of the Single Parents Benefit and Family Tax Benefits in the sum of about $857 per week.
She owns the G property in which she holds equity of about $31,000, and deposes in her Financial Statement sworn 29 October 2013 that she has superannuation entitlements of about $1720.
There is nothing in the evidence before the court to indicate that the wife is incapable in any physical or mental sense for future employment, but she has few employable skills, having worked in largely unskilled occupations and for short periods of time since her marriage to the husband.
Section 75(2) (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
There are four children of the marriage. They live with the wife and pursuant to orders made by consent on 24 September 2014, they spend two nights a fortnight, half of all school term holidays, two weeks of the long summer holiday, specified time at Christmas each year and weekly telephone time with the husband.
Section 75(2) (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
The husband must support himself, and he has in total four children under the age of 18 for whom he is liable to pay child support. [A] and [B] are aged 20 and 18 respectively and it is not known whether the husband has any obligation to provide financial support for them.
The wife must support herself, and she has the full-time care of the four children of the marriage. Her daughter [C] turns 18 in August 2015 and the wife has an obligation to support her until that date.
Section 75(2) (e) the responsibilities of either party to support any other person
There is no evidence before the Court that either party has responsibilities to support any other person.
Section 75(2) (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
There is no evidence before the Court of the husband’s current eligibility for Centrelink benefits, although he has in the past received some benefits in relation to his care of [A], [B] and [W].
While he has entitlement to superannuation of about $40,000 there is no evidence before the Court that he has access to those funds currently.
As already stated, the wife receives the Single Parent’s Pension and Family Tax Benefits in the sum of about $857 per week.
Section 75(2) (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The husband states his address as Property S [2] on his trial affidavit but evidence was given at trial that the SW properties have remained vacant since 2012. It is possible that he is currently living with his parents in L.
The husband gave evidence at trial that during the period after his daughter [A] made allegations of sexual abuse against him, and at least up to the time of his acquittal on charges relating to those allegations, his property was vandalised in the form of graffiti and damage to fences. He said that he no longer felt comfortable living there.
The wife lives in her own home with the children of the marriage and perhaps her daughter [C], although her evidence at trial was that the house is extremely run down and in urgent need of repairs and maintenance.
In circumstances where the parties have been separated since 2005 it is difficult to compare the standard of living which they experienced during the marriage to one which might pertain after the making of final orders.
However the orders I propose to make will provide the wife with the means to repair her home, at least to some extent, and the husband with enough money to repay his parents and perhaps start again. In all the circumstances I consider that to be a reasonable standard of living for both parties.
Section 75(2) (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.
Neither party has any formal qualifications beyond high school. It is possible that the wife, who has few if any employable skills, might benefit from a course of study which could potentially provide her with qualifications more likely to lead to employment for her.
However it is likely that she will find that difficult in circumstances where she has four children under the age of 18.
Section 75(2) (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
The orders I propose to make include an order that obliges the husband to do whatever he can to have his parents remove the caveat over the SW properties. Otherwise, if the caveat were to remain indefinitely, the property would be essentially unable to be sold.
If the parents do remove the caveat before settlement of any sale of the properties, their ability to enforce payment of the husband’s debt to them might well be compromised.
However, the husband’s parents are not parties to these proceedings, and they have filed no Affidavit material of their own in support of his case.
It is likely that the husband will be able to repay much if not all of the debt he owes them once the SW properties have been sold and it is to be hoped that some agreement can be reached between him and his parents which will allow them to be satisfied that they will be paid at settlement of the sale.
Section 75(2) (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
During the relationship and marriage, which I have found lasted some six years, both parties contributed to the income of the other, although I do not think it could be said that either had contributed to the other’s earning capacity. I have already stated what I believe to be the contributions of each party to the property and financial resources of the other.
Section 75(2) (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
The marriage lasted about six years and its duration alone cannot be said to have affected either party’s earning capacity.
Section 75(2) (l) the need to protect a party who wishes to continue that party's role as a parent
The wife will have the care of the four children under the age of 18 and she has been their primary carer for many years now. The youngest of her children will not turn 18 until the beginning of 2028 and the orders I propose to make will allow her, as far as possible, to continue her role as a parent.
Section 75(2) (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
There is no evidence that either party is cohabiting with another person.
Section 75(2) (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
I propose to make orders that will provide for the sale of the SW properties and for the wife to retain the G property. Both parties will receive cash payments from the sale of the SW properties.
As far as the Court is aware there is no vested bankrupt property in relation to a bankrupt party in this case.
Section 75(2) (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)
This factor is not relevant in this case.
Section 75(2) (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
The evidence before the court is that the father pays child support pursuant to a child support agency assessment, although he has at times been in arrears with those payments.
Section 75(2) (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I take into account the effect on both parties and the children of the allegations made against the husband by his daughter [A] in late 2011.
The father’s evidence is that he was hounded by members of the local community as a result of those allegations and the charges laid against him, and as it appears he intends to continue living in the same general area, there is little doubt in my mind that despite his acquittal he will continue to suffer the consequences of the allegations having been made.
The wife and children will similarly have to live with the aftermath of those allegations and charges having been made against the husband.
I also take into account the fact that the husband has superannuation entitlements and the likelihood of those superannuation entitlements increasing over time is quite high, whereas the wife’s superannuation is extremely minimal and her lack of employable skills means that it is unlikely that her superannuation will increase significantly during what might have been her employment years.
In addition I take into account, affecting his financial resources, the $45,000 debt which the husband owes to his parents as a result of his criminal and Intervention Order proceedings.
Section 75(2) (p) the terms of any financial agreement that is binding on the parties to the marriage
There is no financial agreement that is binding on the parties to the marriage.
Section 75(2) (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The court is unaware of any Part VIIIAB financial agreement that is binding on either party.
Taking into account all the above factors as a whole, and particularly the wife’s lesser earning capacity, her lack of superannuation entitlements when compared with the husband’s, and her care of the children of the marriage well into the next decade, I find on balance that an adjustment of 20% (twenty per cent) in the wife’s favour should be made to the contributions-based entitlements.

F. In light of those findings what orders should be made to produce a just and equitable settlement between the parties?

The result of the above findings is that the wife should receive 60% of the parties assets and the husband 40%.
It was put to me by the wife’s counsel that it was open to me to make orders that the wife receive 100% of the sale proceeds of the SW property, the G property, and 100% of the husband’s superannuation entitlements. For all the reasons set out above I reject that submission.
As the wife wishes to retain her home and the husband does not, I find it appropriate that the SW properties should be sold and the proceeds divided such that the wife receives 60% of the property overall.
For the sake of clarity I note that I have already taken into account the husband’s superannuation entitlements in calculating that figure and do not intend to order a superannuation split in the wife’s favour.
The equity in the two properties and the parties’ motor vehicles amounts to about $158,000. 60% of that sum is $94,800, and 40% is $63,200, although of course when the costs of sale are taken into account, as well as the possibility that the properties might sell for more or less than $210,000, the parties will probably receive different amounts than those.
The wife already holds $31,000 worth of equity in the G property and her motor vehicle worth $5000, total property worth about $36,000. That will need to be taken into account as well.
The husband will retain his motor vehicles and caravans worth about $5000, and that sum to will also need to be taken into account.
I have calculated the husband’s entitlement to the property assets other than the SW properties at $11,400. That is, the wife’s $36,000 plus his $5000 equals $41,000 and 40% of $41,000 is $11,400. That is the sum I shall order to be paid to the husband from the sale proceeds of the SW properties before the distribution between the husband and wife in order that the wife receives 60% and he 40% of the property overall.

Conclusion

This is in so many ways a very sad case.
Both parties and the children are left with significant wounds and scars as a result of both the family violence which occurred during the relationship and marriage, and the allegations and charges against the husband, not to mention the stress of these proceedings.
Whether they are able to overcome those scars and wounds in future relationships is yet to be seen, but it is to be hoped that these orders will at least allow both parties and the children to start anew in a financial sense.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 13 March 2015

[2015] FCCA 510

13 March 2015

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Costs

Remedies

Injunction

Statutory Construction

Appeal