METZER & METZER
[2020] FCCA 119
•24 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| METZER & METZER | [2020] FCCA 119 |
| Catchwords: FAMILY LAW – Family Violence – wife seeks Kennon adjustment – wife bears onus of proof – family violence not proved. FAMILY LAW – Earning Capacity – medical expert evidence – joint conference (conclave) – joint report – wife establishes likely diminution of physical capacity and need for moderate reasonable restrictions from age 60 – wife unlikely to be able to do current job from age 60 due to restrictions affecting specific tasks of current job and occupation – onus – wife bears legal and evidentiary onus to establish that this will probably lead to reduced earnings from age 60 – no submission wife will be unable to work or has no residual earning capacity – wife has skills to do suitable duties involving no physical work with employer with whom relevant workplace injury occurred – no evidence of likely future earning capacity and earnings post age 60 in other occupations or jobs if capacity exercised – absent clear evidence small adjustment only. |
| Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW), s.10 |
| Cases cited: Kennon & Kennon (1997) 139 FLR 118 |
| Applicant: | MR METZER |
| Respondent: | MS METZER |
| File Number: | SYC 8353 of 2017 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 21 – 22 March 2019 |
| Date of Last Submission: | 22 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Southern Waters Legal |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | McCabe Partners Lawyers |
ORDERS
That within forty-two (42) days of the date of these Orders (‘the due date’) that the Respondent Wife pay the Applicant Husband the sum of $414,029 (‘the principal sum’).
(a)On payment of the principal sum referred to in Order 1, the Applicant Husband will sign all documents and do all things necessary to transfer his interest in the property known as Street A, Suburb B in the State of New South Wales, being the whole of the land in Certificate of Title Folio Identifier (‘the Property’) to the Respondent Wife.
In the event the Respondent Wife does not comply in full with Order 1 herein within forty-two (42) days of the making of these Orders, then Order 8-10 below will take effect in respect of the Property but if Order 1 is complied with then Orders 8-10 will not become operative.
That the Respondent Wife and Employer E Superannuation Limited (‘the Trustee’) do all necessary acts and things, sign all documents and give all consents necessary to give force and effect to the Orders herein.
(a)an Order that paragraphs 3(a) to 3(e) (inclusive) and 3(j) of these Orders are binding on the Trustee of the Employer E Superannuation Plan (‘the Fund’).
(b)that the amount allocated to the Applicant Husband in these proceedings out of the interest of the Respondent Wife in the proceedings is $50,000 of value of superannuation (‘the base amount’);
(c)that pursuant to s.90XT(1)(a) of the Family Law Act 1975 (‘the Act’) whenever a split-able payment becomes payable in respect of the interest of the said Respondent Wife in the Fund the Applicant Husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (‘the Regulations’) using the base amount and that there be a corresponding reduction in the entitlement of the Respondent Wife to whom to split-able payment would have become payable but for these Orders;
(d)that Order 3(c) has effect from the operative time;
(e)that the operative time for the purposes of Order 3(c) of these Orders is four (4) business days from the date these Orders are served upon the Trustee of the Fund;
(f)that the Applicant Husband shall, within fourteen (14) days of becoming entitled to receive superannuation benefits from the Fund, provide to the Fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require;
(g)that there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders effecting the superannuation interest;
(h)that until such time as the superannuation split to the Applicant Husband pursuant to these Orders can be rolled over on to a separate account to the Applicant Husband:
(i)the Respondent Wife shall provide to the Applicant Husband no less than twenty-eight (28) days’ notice before such time she elects to retire from and take voluntary retirement and/or for any reason accepts or becomes entitled to access in whole or in part her entitlement to the fund;
(ii)the Respondent Wife shall direct and authorise the Trustee of the Fund to communicate with the Applicant Husband and/or any person authorised by him in writing:
A.to answer any reasonable enquiries as may be made by him on his behalf from time to time in relation to her entitlement in the Fund;
B.to provide the Applicant Husband and/or his authorised representative a copy of any notice of any application or request by the Respondent Wife which seeks release of entitlements in the Fund, insofar as that release may affect the Applicant Husband’s entitlement in the Fund pursuant to these Orders;
(i)that the Respondent Wife be and is hereby restrained from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of her interest in the Fund a ‘non-split-able payment’ within the meaning of Regulations 12 and 13 of the Regulations until the happening of any of :
(i)the transfer or ‘rolling over’ into the separate account in the name of the Applicant Husband in the Fund of the payment split created by these Orders; or
(ii)the transfer or ‘rolling over’ into another superannuation fund of the payment split created by these Orders; or
(iii)the Applicant Husband satisfying a condition of release and being paid the payment split created by these Orders; or
(iv)the Applicant Husband executing a waiver of rights within the meaning of s.90MZA of the Family Law Act 1975 in relation to the payment split created by these Orders;
(j)that in the event that the superannuation split to the Applicant Husband pursuant to these Orders can be rolled over into a separate account of the Applicant Husband, each of the parties hereto and the Trustee of the Fund shall each do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover.
(k)that each party shall be solely entitled to any other superannuation in their name.
That the parties do all acts and things and sign all documents necessary in order to permit the Respondent Wife to obtain, at her expense, a fresh mortgage secured over the Property for the purpose of borrowing the principal sum to pay to the Applicant Husband.
Except as otherwise provided in these Orders, that the Applicant Husband and the Respondent Wife each be declared the sole legal and beneficial owner at all times of all property and liabilities in their sol names including:
(a)real property such as the property located at Street C, Suburb D, in the state of Queensland together with the mortgage secured over that Street C, Suburb D property held in the Respondent Wife's name and this mortgage shall be the wife’s sole liability and she shall be liable for it, even if it is also secured over the Property described in Order 1(a);
(b)all monies held in bank accounts solely owned and operated by the parties;
(c)motor vehicles held in the parties’ respective names;
(d)insurances, equities and personal effects currently in the possession and control of each of them respectively; and
(e)Superannuation entitlement subject to the above Superannuation Splitting Order.
That the Applicant Husband indemnify and keep indemnified the Respondent Wife in respect to any liabilities standing in the name of the Applicant Husband and any liability encumbering any item of property to which the Applicant Husband is entitled pursuant to these Orders.
That the Respondent Wife indemnify and keep indemnified the Applicant Husband in respect to any liabilities standing in the name of the Respondent Wife and any liability encumbering any item of property to which the Respondent Wife is entitled pursuant to these Orders.
In these following Orders the Applicant Husband is the ‘first party’ and the Respondent Wife is the ‘second party’.
The parties shall forthwith do all acts and things and sign all necessary documents to cause the sale of the Property by way of public auction as soon as reasonably practicable and for that purpose the following sale provisions shall apply:
(a)real estate agent selection
(i)that within seven (7) days of the date of these Orders, the first party shall nominate in writing to the second party the names of three (3) qualified real estate agents (‘the agents’) who have consented to act;
(ii)if the first party does not nominate three (3) agents within seven (7) days, the second party may nominate an agent at their sole discretion and that will be the agent for the purposes of the sale;
(iii)if the first party does nominate three (3) agents then within a further seven (7) days the second party shall nominate one of those agents and then that agent will be the agent for the purposes of the sale;
(iv)if the second party does not select one (1) agent within seven (7) days the first party may choose one (1) of the three (3) nominated agents at their sole discretion and that will be the agent for the purposes of the sale;
(v)that within fourteen (14) days of the date of these Orders the parties shall sign all authorities and execute all documents necessary to instruct the agent to act on the sale of the Property;
(vi)the parties shall be responsible for giving joint instructions to the agent acting on the sale of the Property; and
(vii)the costs of the agent shall be borne equally between the parties.
(b)Conveyancing solicitors
(i)that within seven (7) days of the date of these Orders, the first party shall nominate in writing to the second party the names of three (3) qualified conveyancing solicitors who have consented to act;
(ii)if the first party does not nominate three (3) conveyancing solicitors within seven (7) days, the first party second party may nominate a conveyancing solicitor at their sole discretion and that will be the conveyancing solicitor for the purposes of the sale;
(iii)if the first party does nominate three (3) conveyancing solicitors then within a further seven (7) days, the second party shall nominate one (1) of those conveyancing solicitors and then that conveyancing solicitor will be the conveyancing solicitor for the purposes of the sale;
(iv)if the second party does not select one (1) conveyancing solicitors within seven (7) days, the first party may choose one (1) of the three (3) nominated agents at their sole discretion and that will be the agent for the purposes of the sale;
(v)that within fourteen (14) days of the date of these Orders the parties shall sign all authorities and execute all documents necessary to instruct the conveyancing solicitor to act on the sale of the Property; and
(vi)the costs of the conveyancing solicitor shall be borne equally between the parties;
(c)Auction
(i)that the Property be placed on the market for sale by auction as within sixty (60) days of the date of these Orders; and
(ii)that such an auction take place within six (6) weeks from the date of placing the Property on the market for sale by public auction or as soon as practicable thereafter;
(d)no tenants will be allowed or rental agreements for the Property will be entered into without the consent in writing of both parties;
(e)neither party will, without the express written consent of the other, cause any other agency agreement to be effected or binding on the parties;
(f)neither party will encumber or otherwise deal with the Property without the prior written consent of the other party;
(g)in the event a prospective purchaser makes an offer to purchase the Property prior to the proposed date for auction, the parties may agree on a price and to sell the Property to such a purchaser in writing, and in the event the parties are unable to agree on a price, then the Property shall proceed to auction;
(h)the parties or either of them may lawfully bid at the auction;
(i)A reserve price shall be fixed by written agreement between the parties, and failing agreement, within fourteen (14) days of the auction date being set the reserve price will be determined by a valuer, (other than the auctioneer) appointed by the parties, or failing agreement, by a valuer appointed by the President of the New South Wales Institute of Valuers upon the written request of either party, and the parties shall share the costs of the valuer equally.
(j)the Respondent Wife shall provide access to the Property at all reasonable times to prospective purchasers and the agent, or his or her representative;
(k)the Respondent Wife shall maintain the Property in reasonable condition and repair pending completion of sale; and
(l)in the event that the Property fails to be sold at the auction referred to above the Property shall be resubmitted for auction at a reserve price 5% lower than at the previous auction and shall continue to be resubmitted for auction every four (4) weeks with a further 5% reduction in the reserve price until such time as the Property is sold.
In the event the Property is sold, the proceeds of sale of the Property shall be distributed in the following manner and priority:
(a)payment of agent’s commission, auctioneers fees and advertising expenses payable on the sale;
(b)payment of the legal costs and fees relating to the sale;
(c)payment of any unpaid rates or water or other charges running with the land, which costs will be deemed to be the wife’s costs and shall be taken from her share of the below distribution.
(d)payment to each of the parties in accordance with the formula below where:
(i) $A equals the net proceeds of the sale of the property;
(ii)$W equals $642,637;
(iii)$H equals $371,710; and
(iv)$A + $W + $H = $Z; and
(e)The husband shall receive $B and the wife is to receive $C from the fund of $A so that:
(i) $B + $C = $A;
(ii) $H + $B = 0.4 x $Z;
(iii)$W + $C = 0.6 x $Z; and
(iv) $H + $B + $W + $C = $Z.
(f)If the mortgage over the Street C, Suburb D property is also secured over the Property, then any costs associated with the discharge of that mortgage, and if necessary the liability to repay that mortgage, shall be solely on the wife and shall be deducted from her share of the distribution set out above.
That the parties have general liberty to relist the matter on seventy-two (72) hours’ notice in relation machinery issues and implementation of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Metzer & Metzer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8353 of 2017
| MR METZER |
Applicant
And
| MS METZER |
Respondent
REASONS FOR JUDGMENT
A: Introduction and overview
Applications
These are competing applications for alterations of property interests pursuant to s.79 of the Family Law Act 1975 (‘the Act’).
Each party seeks orders for an alteration of property interests to end their financial relations. There is no issue that it is appropriate for an order pursuant to s.79 to be made to achieve finality.
Parties
The Applicant Mr Metzer (“the husband”) was born in 1962 and is 57 years old. He is a public servant. He has also worked, and currently works part-time in a second job, as a labourer.
The Respondent Ms Metzer (“the wife”) was born in 1964 and is 55 years old. She is and at all relevant times has been a customer service officer with Employer E.
The one child (male) of the relationship X (‘the child’) was born in 2003 and is 16 years old. Consent parenting orders in respect of the child were entered on 7 September 2018. The child lives with the wife and spends time with the husband as agreed between the child and husband.
The husband has a child from a former relationship, ‘Mr Q’ born in 1994 who is now 25. Mr Q has lived in a foreign country with his mother since about age 7. There is no evidence that he is dependent on the husband.
Relationship background
The parties commenced cohabitation in 2001. The husband was 39 and the wife was 37. They initially lived in a unit owned by the wife at Suburb R (‘the Suburb R unit’) and then moved to a house they purchased at Street A, Suburb B in the State of New South Wales (‘the house’). The child was born in 2003. The parties married in 2007.
The parties separated 27 April 2017 and the husband left the former matrimonial home. They were divorced on 11 August 2018. The period of cohabitation was approximately 15 ½ years.
Principal issues and summary of findings
The wife seeks a final adjustment as to 75% in her favour and 25% to the husband. The husband seeks 55% to the wife and 45% to him.
The net assets, liabilities and superannuation were ultimately agreed at $1,964,347.
The husband sought a ‘two-pool’ approach. I have adopted a conventional ‘one-pool’ approach.
The husband’s submission was that contributions favoured the wife 55% to 45%. The wife’s submission was that they favoured her 60% to 40%. For the reasons set out below I find that the contributions favoured the wife 58% to 42%.
The wife sought an adjustment of 5% for family violence pursuant to the principles originally articulated in Kennon & Kennon (1997) 139 FLR 118 (‘the Kennon claim’). The husband denied the wife’s allegations. The wife bore the onus of proof. The wife and was not able to discharge that onus. Accordingly, there is no adjustment for that factor.
The wife sought a further 10% adjustment for the s.75(2) factors relating to her physical health and capacity and it’s likely impact on her future earnings, her ongoing primary care for the child and the husband’s currently higher earnings. The husband submitted that there should be no adjustment either way. For reasons set out below I find there should be an adjustment of 2% to the wife.
In summary I find the appropriate property adjustment will result in the wife receiving 60% and the husband 40% of the pool.
The wife’s superannuation constitutes just under 30% of the pool. To avoid being illiquid, the wife seeks a form of order involving a superannuation split of $100,000 of her superannuation to the husband. The husband opposed any such order. I consider it appropriate to make a superannuation splitting order for $50,000.
B: Assets, liabilities and superannuation at hearing
The parties, eventually, agreed upon a joint balance sheet which is set out below:
| ASSETS | |||
| Ownership | Description | Value ($) | |
| 1 | Joint | Street A, Suburb B | 950,000 |
| 2 | Husband | S Bank account #1 (as at 24/2/19) | 11 |
| 3 | Husband | S Bank account #2(as at 24/2/19) | 0 |
| 4 | Husband | S Bank account #3 (as at 24/2/19) | 0 |
| 5 | Husband | S Bank account #4 (as at 24/2/19) | 142,321 |
| 6 | Husband | S Bank account #5 (as at 24/2/19) | 0 |
| 7 | Husband | S Bank account #6 (as at 24/2/19) | 0 |
| 8 | Husband | S Bank account #7 (as at 24/2/19) | 0 |
| 9 | Husband | S Bank account 8 (as at 24/2/19) | 0 |
| 10 | Husband | S Bank account #9 (as at 24/2/19) | 0 |
| 11 | Husband | S Bank account #10 (as at 24/2/19) | 0 |
| 12 | Husband | Motor Vehicle H | E 7,600 |
| 13 | Husband | household contents and effects | E 2,000 |
| 14 | Husband | Funds held in Southern Waters Legal trust account | 42,794 |
| 15 | Wife | Street C, Suburb D, QLD | 240,000 |
| 16 | Wife | St George Complete Freedom account #11 (as at 15/3/19) | 0 |
| 17 | Wife | St George account #12 (as at 15/3/19) | 0 |
| 18 | Wife | S Bank account #13 (as at 15/3/1 9) | 0 |
| 19 | Wife | S Bank account #14 (as at 15/3/19) | 1 |
| 20 | Wife | S Bank account #15 (as at 15/3/ 9) | 1 |
| 21 | Wife | S Bank account #16 (as at 15/3/19) | 0 |
| 22 | Wife | S Bank account #17 (as at 15/3/19) | 5,000 |
| 23 | Wife | S Bank account #18 (as at 15/3/19) | 197 |
| 24 | Wife | S Bank account #19 (as at 15/3/19) | 5,000 |
| 25 | Wife | ING Everyday account #20 (as at 15/3/19) | 12 |
| 26 | Wife | 2,400 F Shares ($5.55 per share as at 15/3/19) | 13,320 |
| 27 | Wife | 2,149 G Shares ($7.82 per share as at 15/3/19) | 16,805 |
| 28 | Wife | 3,553 E Shares ($5.62 per share as at 15/3/19) | 19,968 |
| 29 | Wife | Motor Vehicle J | E 28,000 |
| 30 | Wife | household contents and effects | 5,000 |
| 31 | Wife | Jewellery | 5,000 |
| 32 | Wife | Funds held in McCabe Partner Lawyers trust account | 7,360 |
| Total | $ 1,490,390 | ||
| ADDBACKS | |||
| Ownership | Description | Value ($) | |
| 33 | |||
| Total | $ 0 | ||
| LIABILITIES | |||
| Ownership | Description | Value ($) | |
| 34 | Husband | Westpac VISA (as at 10/2/19) | 1,039 |
| 35 | Husband | T Bank account (as at 21/2/19) | 1 |
| 36 | Wife | ING Home Loan account #21 (as at 15/3/19) | 200,000 |
| 37 | Wife | NAB VISA account #22 (as at 15/3/19) | 0 |
| 38 | Wife | AMEX account #23 (as at 15/3/19) | 125 |
| 39 | Wife | T Bank account #24 (as at 15/3/19) | 5,003 |
| 40 | Wife | Car lease | 24,261 |
| Total | $ 230,429 | ||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | ||
| 41 | Husband | Super Fund U (as at 16/2/19) | Accumulation | 128,024 |
| 42 | Wife | Employer E Super (as at 15/03/19) | Defined Benefit and Accumulation | 576,362 |
| Total | $ 704,386 | |||
| FINANCIAL RESOURCES | |||
| Ownership | Description | Value ($) | |
| 43 | Wife | Long service leave entitlements (47 days, based on average gross daily rate of $241) | N/A |
| Total | $ 0 | ||
| NET TOTAL ASSETS (including Superannuation) | $ 1,964,347 |
Net total non-superannuation assets are therefore $1,259,961 with superannuation of $704,386 for the combined net total of $1,964,347. Superannuation is approximately 36% of the net pool.
Excluding the house there are net non-superannuation assets of $309,961, of which the wife has $116,275 and the husband $193,686.
C: Contributions
There were a range of factual disputes between the parties as to contributions. While the final submissions varied by 5% as the parties were unable to resolve this issue it has been necessary for the Court to consider and weigh the extensive evidence on the issue.
Initial financial contributions
The submissions on initial contributions were almost the same.
The parties were in their late 30’s.
At cohabitation the wife owned the Suburb R unit. That property was sold in 2002 a few months post-cohabitation. The wife received approximately $200,000 net, which the parties accepted as the net value of that asset at cohabitation.
The wife’s evidence was that she also had shares worth $4,240, a car she estimated was worth $20,000 and 1,000 Employer E shares of unknown value. The wife also had furniture in the Suburb R unit and personal items.
The wife had superannuation with Employer E of $124,334.
The wife’s net contribution including superannuation was approximately $348,574, plus shares and furniture and personal effects of unknown value, which was approximately $350,000.
The husband’s evidence was that at cohabitation he recalled having approximately $20,000 in savings, an unknown amount of superannuation, and ‘a car and household effects of nominal value’. In cross-examination the husband conceded that the $20,000 included his prior superannuation contributions, which were paid out when he went to Country V for a time to be with Mr Q, so that no value would be attributed to that separately. I find that it is likely that at cohabitation the husband had total assets in the range of approximately $20,000.
I find that the initial contributions were in the range of $350,000 by the wife and $20,000 by the husband, or approximately 95% by the wife and 5% by the husband.
Purchase of the house –2002
The parties purchased the house for $456,000 in 2002, approximately 6 months post-cohabitation.
The wife’s $200,000 from the Suburb R unit was applied to the purchase of a house. The remainder of the purchase price and other unquantified transaction costs were funded by a joint mortgage. To reflect the parties’ relative contributions, the house was purchased as tenants in common as to 72% to the wife and 28% to the husband.
That was consistent with the wife contributing $200,000, being approximately 44% of the purchase price, and each party then being liable for the mortgage payments for half of the remainder, ie 28% each.
The husband agreed in cross examination that this agreement was reflective of their contributions.
Non-financial contributions to the house
The husband gave evidence that during the course of the marriage he undertook significant and time consuming renovations and improvements to the house and surrounding property.
At the front right of the house: the husband’s evidence was that he built a retaining wall, installed an irrigation system, re-planted the gardens (which involved disposing of all plants, jackhammering and excavating and replacing rock, clay and soil), and purchasing and planting fresh soil and plants, removing, cleaning and setting aside bricks, building a new foundation, formwork and reinforcing for footing, re-laying bricks, installing and finishing sandstone blocks and fitting and running aggregate drain lines, and re-planting the front lawn in sections. This was said to be a major endeavour.
At the front left of the house: the husband’s evidence was that he replaced wooden stairs with sandstone stairs, installed irrigation, water-proofed the side of the house and installed further aggregate drain lines, which involved excavating and replacing of plants, soil, clay and rock, and disposing of rotting wood, rock cutting and replacing with crusher dust.
In the garage: the husband’s evidence was that he purchased and fitted a window, built decking on a shelf, constructed a large wine rack and antique door with vintage hinges to create a cellar, which involved jackhammering and disposing of sandstone, purchasing bricks, forming and fitting decking on the shelf, insulating and running electrical wiring and lighting.
In the rear of the house: the husband’s evidence was that he constructed a landing, re-constructed the deck, removed and re-planted the kitchen gardens, installed and fitted an area with a hot tub and sandstone walls, constructed a third flight of stairs and decking, installed drainage and irrigation, laid stormwater pipe. He also reconstructed the gazebo, which involved removing old decking, excavating clay and rock by hand and jackhammering rock and drainage trenches, removing and replacing soil, plants, and framework, building and wiring lighting, constructing a concrete spoon drain, connecting an aggregate drain, fitting colour bond, constructing a landing and sleeper wall, removing and sending railings for powder coating, oiling the deck, laying foundations, grinding and buffing rock faces, connecting the power supply, constructing sandstone steps, re-paving, raising the gazebo, lowering the gazebo roof, painting eaves, guttering and exterior woodwork. His evidence was that this was another major construction project.
Inside the home: the husband’s evidence was that he designed and constructed a stairway, re-modelled the kitchen, installed a chimney and fireplace, replaced a shower and replaced all remaining floor coverings, which involved constructing two hinged doors, removing carpet, sanding, staining and lacquering stairs, bannisters and cupboards, removing kitchen fittings, walls and gyprock, fitting new cupboards, oven, stovetop and fan unit, employing tradespeople to fit benchtops and splashbacks, constructing a roof framework, removing and replacing a shower screen, taps and vanity, re-grouting and re-tiling the shower, removing, re-staining and re-lacquering skirting, and ordering vinyl flooring.
The wife did not substantially contest that the husband had undertaken this work.
The husband’s case was that this work added substantially to the current value of the house. However, there was no admissible evidence of either of the parties as to what it would have cost to have equivalent work done by a third party, nor of the additional value the work added to the house compared to the likely value of house absent such work.
There was a factual dispute about the extent to which the wife also contributed to the work, particularly in light of her evidence of reduced physical capacity for heavy work considered in respect of her claim for a s.75(2) adjustment below. The wife’s evidence was that:
a)at the back of the house: she assisted in the labour by carrying buckets of dirt, sandstone and pavers; holding snap lines to ensure angles were correct; purchasing and picking up concrete and plants; and cleaning up around the renovations; and
b)inside the house: for the new kitchen, she was the one who obtained the quotes, and some discounts for materials; she assisted the works by carrying materials; taking measurements; lifting appliances; designing the pattern of the flooring; and preparing for and assisting with painting. She cleaned around the renovations each day.
The wife’s evidence was that the husband also had friends assist him with the renovations and the wife would be responsible for providing and paying for meals and beers.
While there is no evidence of the cost of the works undertaken, nor of the additional value added, this was a substantial set of renovations as shown in the photographs provided. I find that it is likely that such renovations added some commercial value to the house, although it cannot be found whether that value was large or small. While the wife assisted, I find the majority of the contribution was attributable to the husband.
However, as discussed further below, I find that it is likely that the time spent on this work meant that the wife’s contributions in homemaking were probably greater and that these equalled out.
Financial contributions
At cohabitation the wife was working full-time and earning between $60,000 and $70,000 per annum. The husband was working full-time as a labourer earning approximately $65,000 per annum. The husband continued labouring work until he obtained employment in 2008 as a full-time public servant with Employer W.
The wife has worked throughout with Employer E, with gaps only for maternity leave and post-surgical recovery. The husband worked throughout.
The parties did not provide details of earnings over the course of the marriage. There is no submission that they did otherwise than contribute their funds to the extent they earned them nor that there was historically a significant disparity in their earnings.
The parties both accepted that after the purchase of the house the parties each put in equal amounts of money to the mortgage account to pay the mortgage until it was paid off in 2015.
The husband commenced working two (2) jobs from about 2016, his full-time role as a public servant and a part-time role as a labourer.
While each party pointed to different items they said they paid for over the relationship, there was no submission put by either party that their contribution in this regard relevantly exceeded the other parties.
Town K property
In 2004 the parties purchased a property at Town K in the state of Queensland for approximately $150,000. It was sold for a loss of $30,000 in 2013. This was a joint loss.
Street C, Suburb D, Queensland Property
The parties purchased a property at Street C, Suburb D (‘the Suburb D property’). The Suburb D property is included on the balance sheet at items 15 and 36, at $240,000 with a mortgage of $200,000. The Suburb D property is currently being tenanted for $295 per week and the wife was satisfied it was let-able when a tenant left.
The wife’s evidence was that she wanted to purchase the Suburb D property and the husband did not. The husband’s evidence was he did not believe purchasing the Suburb D property was a good financial decision, however he supported the wife in purchasing the Suburb D property and arranged for tradespeople to do renovations when required.
The Suburb D property was purchased and mortgaged in the wife’s sole name. The wife’s evidence was she spent approximately $25,000 on renovations, but she agreed in cross-examination that some of this was borrowed and secured against the house.
The wife conceded in cross-examination that the Suburb D property was purchased with borrowings secured over that property rather than savings, and further that she would not have been able to purchase that property without the husband’s consent to a cross-mortgage being secured over the house.
The wife claims the $40,000 net equity in the Suburb D property as her contribution. However, it was purchased using a loan, with the house as security, and has primarily funded itself through rent. To the extent some of the wife’s income was used that income is included in her financial contributions.
I find that the Suburb D property was a joint contribution as Town K was a joint loss.
Family welfare contributions
The wife’s evidence was that she worked up until the day before the birth and returned to work after maternity leave. During the first year, post-birth, she was the primary carer and homemaker. I accept that evidence.
The wife’s evidence was also that she contributed at least 80% of the home duties and parenting duties during the marriage. The husband strongly contested this issue.
The wife said she has been almost solely responsible for the child’s care since birth. The wife returned to a four (4) day roster each week, leaving Sydney for City L, Country Z on a Thursday morning and returning on a Sunday morning. Her evidence was that when she was away the child was in the care of either set of grandparents, or the husband.
She said she would prepare everything the child would require for the week, including lunches and uniforms for each day when the child was at school.
The husband’s evidence is that when employed as a labourer for the company, until 2008, he would return home at 3:30am, sleep until approximately 10:30am, and then spend the day with the child or working on the house. When the child commenced school and the husband commenced as a public servant in 2008, he would assist with school drop-offs, football training and care of the child on the four (4) days he was not working, as he was on a roster of two (2) day shifts followed by two (2) night shifts then four (4) days off.
The wife did not accept that the child was primarily cared for by the husband during those periods, because he was also working some of the time, but did accept that the husband was one of the carers along with the husband’s parents and her parents. She accepted that after the husband commenced work as a public servant he undertook more care of the child because the scheduling allowed for a lot of days off.
There was no evidence seeking to quantify how much assistance the grandparents provided.
The wife’s evidence was that when she was not away with work she would do all the washing, preparing meals, which included food that the husband would take when working nightshifts, and cleaning the house with the help of the husband. The wife’s evidence is that she was not allowed to use the dishwasher, or clothes dryer when performing home duties because of the husband’s views about electricity costs, as considered further below in relation to her Kennon claim.
The husband asserts the home duties including grocery shopping, preparing meals and cleaning were shared equally.
The husbands evidence is that he spent a great deal of time on the extensive renovations, noted above, and was also ‘primarily responsible for the maintenance and upkeep of the exterior of the’ house.
There was no independent evidence against which to test these contentions. The husband clearly did take part in parenting duties noting the wife’s work schedule meant she was away from home from Thursday morning to Sunday morning each week, and it was not suggested the child lived with either set of grandparents, nor that they did other than assist. Similarly, it is likely that the husband undertook some day-to-day housework during that period.
I consider that it is likely that if the husband’s renovation work is excluded the wife’s contributions exceed the husband’s.
However, dealing with this and the renovations referred to above, I find that it is likely that the parties overall contributions in these two (2) areas when added together were broadly equal.
Post-separation contributions
Post-separation, the wife added approximately $100,000 to her superannuation balance, which she claims as a significant post-separation contribution, citing W & W (2005) 33 Fam LR 373.
The husband submitted that the wife’s capacity to contribute that substantial additional sum to her superannuation was made possible by her living in a house with no mortgage or rent while he had to rent, and live in less salubrious housing, at a cost of approximately $51,400 over the period.
The husband’s evidence was that for a period of sixteen (16) months his rent was $41,600, and that in August 2018, in order to reduce costs, he relocated to the Region M, where he has been paying a reduced rent of $350 per week, with an estimated $51,400 in rent since separation.
The wife has had the substantial care of the child, who was 13 at separation. Her evidence was that when she worked internationally the child would stay with the husband, the wife’s friend or her sister. The parties agreed on an interim arrangement where the husband spent time with the child every Wednesday afternoon and, if possible, every second Sunday. After the husband moved out of the Sydney area the time spent was reduced to phone time and face-to-face time approximately every eight (8) weeks where they would stay at the husband’s brothers house. The husband took the child on a holiday to the Country Z in 2019.
The husband’s evidence was that on separation he was only allowed to spend time with the child when the wife travelled.
It was agreed that the husband has been paying child support in the range of $100-258 per week, half of the school fees being $2,900 per annum, the child’s phone plan of $10 per month, and the child’s football registration of $150 per season. The wife agreed the husband was currently paying $277 per week in child support, and the other items.
I find that while the wife did add a substantial sum to superannuation, with an unknown tax effect, that was balanced by the husband’s requirement to spend a substantial after-tax sum on accommodation and the inconvenience of being required to move outside of Sydney.
I find that the wife did make a small additional contribution by reason of her post-separation care for the child.
Inheritance, add backs, costs and one or two pools
The husband received an inheritance of approximately $240,600 from his father’s estate in 2016. It was paid to his personal bank account. His evidence was that he had not used those funds on matrimonial expenses and that the wife ‘made no contribution’ to his inheritance.
At the hearing, the husband had paid $62,590.45 of this inheritance money on his legal costs up until that point in time, and there was a further $42,793.83 in this solicitors trust account, at item 14, with work done but not billed of approximately $19,000 to trial. This resulted in the residue of the inheritance being on the balance sheet, at item 5, at only $142,321.
On that basis, the wife’s submission was that the husband’s contribution in this regard should be considered in net terms as $142,321 and not as $240,600.
Neither party in the Balance Sheet or submissions sought any “add-back” or adjustment in respect of costs, other than the wife’s submission concerning the amount of inheritance that should be considered and the exclusion of the amount in trust. The wife’s costs memorandum was for an estimated total of only $38,000. No submissions were made about that.
The husband submitted that the receipt of the inheritance within a year of the end of the relationship, and the fact that it had been kept in a separate bank account, would lead the Court to proceed on a ‘two pool’ basis, although then made submissions that the inheritance would be a s.75(2) factor which would favour the wife requiring an adjustment which would lead to ‘a very similar place’.
The wife submitted there was no basis for treating this asset separately.
The inheritance was received during the relationship. Although the inheritance was kept in a separate bank account these parties did not maintain the kind of strict division of assets referred to in McMahon & McMahon (1995) 19 Fam LR 99.
I am not persuaded it is appropriate to deal with the husband’s inheritance as a separate asset or pool. I find that it is appropriate to include the inheritance as the husband’s contribution in a single pool.
I accept the wife’s submission and allow the husband’s inheritance as his contribution in the sum of $142,321.
Submissions
The husband acknowledged the wife’s greater initial contribution and that this resulted in her being ‘ahead’ on a contributions basis, but submitted that, taking into account all of the contributions, it’s significance had diminished over time. Both the parties worked during the marriage. Both parties contributed to family welfare through homemaking and parenting. The husband had undertaken the majority of the substantial work improving the house. The wife’s post-separation superannuation contribution was possible because she had no rent. Post-separation, the husband had paid child support and sought to spend time with the child.
Since separation, the wife has had the primary care of the child, however, the husband has paid child support and has also paid rent while the wife had the benefit of a mortgage-free house.
The husband submitted the wife’s contribution would be assessed at 55% to the husband’s at 45%.
The wife placed considerable reliance on her greater initial contributions and, on her case, of making substantially greater contributions to parenting and homemaking, as well as on her post-separation contribution of nearly $100,000 towards superannuation.
The wife submitted that contributions were 60% to 40% in favour of the wife.
Findings
The submissions as to percentages on this issue were 5% apart.
There is no doubt that the wife’s significant initial contribution must be given due weight: see Pierce v Pierce (1998) 24 Fam LR 377. However, significant though it was, it is only one of the myriad of contributions which are required to be taken into account over the course of their fifteen (15) year relationship: see Jabour & Jabour (2019) 59 Fam LR 475.
Noting the difficulty inherent in turning an ‘evaluation of contribution based entitlements’ from a ‘qualitative evaluation of contributions to a quantitative reflection of such evaluation’ and the necessary ‘leap from words to figures’, (see Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]), I find that when considered as a whole the evidence does establish that the wife’s contributions were greater than the husbands, but not by so much as the wife submitted.
I find that the wife’s contributions were 58% and the husband’s 42%.
D: Family violence – “Kennon” claim
Principles
The wife submitted that there should be a further adjustment of property in her favour of 5% as a consequence of the husband’s acts of family violence during the relationship
The Full Court in Kennon & Kennon (1997) 139 FLR 118 said:
‘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.’
In S & S [2003] FamCA 905 the Full Court summarised the issues requiring proof at [47]:
‘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).’
Onus and standard of proof
The party who asserts, here the wife, bears the legal and evidentiary onus to establish each of the elements of the claim set out above. The standard of proof is the civil standard in s.140 of the Evidence Act 1995 (Cth). That section requires the Court to consider the nature of the legal issue and the subject matter of the proceedings, as well as the gravity of the matters alleged.
This is the statutory successor to the principles enunciated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 when considering the civil standard of proof of adultery in divorce proceedings.
Justice Rich said of the application of the civil standard in such circumstances:
‘In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.”
Justice Dixon stated the principle as:
‘…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.’
The allegations made are serious and involve grave moral delinquency. Accordingly, the Court requires comfortable satisfaction that the allegation has been proved on the balance of probabilities.
The issues
The wife alleged that the husband engaged in verbal abuse, and controlling and threatening behaviour throughout the relationship. She also alleged that she was affected by having to observe the husband’s physical abuse of the child.
The wife also relied upon an incident on 12 May 2017, a few weeks post-separation, which she said included a physical assault and battery. While this event could not affect her contributions to separation, this was lead as evidence relevant to establishing a pattern of non-physical family violence behaviour throughout the relationship which culminated in this post-separation physical assault.
The husband denied the allegations generally and in respect of the 12 May 2017 event said that it was a mutual verbal dispute of a kind which is common for separating parties.
12 May 2017 alleged physical assault
I commence with a consideration of the 12 May 2017 event given the significance each party placed on it.
The wife’s evidence in chief was that on 12 May 2017, some two (2) weeks after the husband left the house, he arrived to collect some belongings and ‘pushed passed me and entered the house, taking items he wanted’. Whilst the husband was in the bedroom looking for particular pillows the wife told him he could not have those pillows and:
‘141 … … He then forcibly pushed me down and I fell onto the bed. I was fearful for my life and was desperate to find an escape. He then prodded me in my face with his finger, pushed my head to the side, threatening me, calling me foul and abusive names. He turned around left the bedroom and at the top of the stairs he turned and said to me words to the effect:
“When did you turn into such a mean, nasty fucking cunt.”
Then he threatened to come back and he said words to the effect:
“I just might come back and move back in.”
142. I was terrified and in fear of my safety, wondering who would help me if he did anything else to me. I was in shock, hysterical, crying and uncontrollably trembling. I immediately texted my friend and neighbour, Ms N, to come and help me, then I called the Police.’
During cross-examination the husband agreed that he attended the home but denied any physical assault. He agreed that he laughed when she told him not to come back and had said ‘I just might come back and move back in’ as a joke.
The husband tendered the subpoenaed records from the NSW Police in relation to this event including the wife’s subsequent contacts with police about it.
Given the significance of this event I set out in full the three (3) police narratives entered in respect of this event.
Narrative one (1) of three (3) gives a date and time of 12 May 2017 at 15:15.
‘INCIDENT: The PN, MR METZER and VIC, MS METZER were in a intimate relationship for the past 20 years and as a result of the relationship, they have a 13 year old boy. The PN and VIC are currently going through a separation and due to this, a property dispute has taken place. About 3:15pm on Friday the 12th of May, 2017 the PN has attended to which the VIC is now residing at. The VIC is of the belief she has 70 percent ownership of and the PN has no rights to enter the premises. As a result of this, a verbal argument has taken place. The PN has obtained his belongings and a further verbal argument has taken place over personal items and ownership disputes. A short time later, the PN has left the premises but the VIC has reported the matter to Police later that evening. About 7:50pm on the above date, Police attended the Suburb B address and spoke to the VIC. Police observed no visible injuries and no property damage. Police obtained a signed declaration from the VIC indicating she held no fears for her safety or the safety of her property. The VIC and PN 13 year child was not at the scene at the time of incident nor was he at the scene upon Police arrival. About 9pm on the above date, Police contacted the PN who was at the time travelling to Town AA for the weekend. Police informed the PN of the above allegations to which he confirmed to be true. Police requested he keep his distance from the premises and deal with the matter civilly to which he agreed. Due to no offence being detected and the fact that the VIC holds no fears for her safety, NFPA. … ACTIONS TAKEN BY POLICE: Signed declaration from VIC obtained indicating she held no fears for her safety.’
There was no reference to any physical assault.
Narrative two (2) of three (3) gives a date and time of 18 May 2017 at 19:50, six (6) days later.
‘About 2:30pm on Thursday the 18th of May, 2017 the victim, Ms Metzer attended Suburb BB Police station to report several messages received from the PN, MR METZER. The messages were received between the dates of Sunday the 14th of May, 2017 and Tuesday the 16th of May, 2017. The messages consist of request for rent to stay in their shared home which is located at ...The PN claimed that he could receive as much as $800 a week for rental for the property and believed he was entitled to half the rent. The VIC has also informed Police that the PN has been requesting further visits of their 13 year old child to which she has also taken concern, as this is a irregular behaviour. The VIC wished to apply for a apprehended violence order against the PN in order to keep him from attending their home address. The VIC believed the PN would attend the above address and obtain his own belongings from their garage area and upstairs area whilst she overseas working. Police informed the VIC that due to the house still being shared between each other, their [sic] was nil justification to keep him from the location. Due to both VIC and PN having shared ownership of the property, and the fact that matter is merely a civil dispute and to be dealt with in Family Court, NFPA.’
The second narrative did not note any complaint of physical assault nor raise any fears for her personal safety, nor at this time was there any complaint about her treatment by police on 12 May 2017.
Narrative three (3) of three (3) gives a date and time of 20 November 2017 at 10:00am and 30 November 2017:
‘About 10:00 am on Monday 20 November, 2017, the VIC in this matter attended Suburb CC Police Station wanting to speak to the Domestic Violence Liaison Officer. The DVLO spoke to the VIC who was upset at the apparent lack of empathy by the Officers involved and the fact that no ADVO had been taken out in relation to an incident that had happened in May, 2017. The DVLO explained that the incident had been investigated at the time and due to the fact that the VIC had informed the Officers that she did not hold any fears for her safety then an ADVO was not applied for. The Officers Notebook had been signed by the VIC to that effect.
The DVLO spoke to the VIC again at 12:00 noon on 30/11/2017 who stated that she felt she had been pushed into not taking out the ADVO with comments like “you will have to go to Court about 3 times”. The DVLO assured the VIC that all domestic violence incidents were taken incredibly seriously and that should she fear for her safety at any time, to attend a Police Station and make a statement in relation to those fears. The VIC also stated that she had made a complaint to the Ombudsman about the way she had been treated at the incident in May, 2017. The VIC did not make any further reports of domestic violence at this time.’
The complaint was that the wife had been pushed into not taking out an AVO. There was still no record in the police file that the wife at any time reported a physical assault.
It should be noted that the s.60I certificate confirms that there was an attendance at family dispute resolution on 17 July 2017 and a certificate issued on 17 August 2017, so that the reports in November 2017 occurred in the shadow of these proceedings commencing on 15 December 2017.
The wife was cross-examined on these records.
The wife stated that she knew the husband was coming and was frightened of him but still waited by herself and had not asked anyone to wait with her.
The wife was asked:
‘[a]nd did you ask the police to apply for an AVO for you protection?---They asked me if I wanted to take out an AVO.
What did you say?---I said no.
That’s because you didn’t think you needed one, isn’t it?---No.
No.
HIS HONOUR: Sorry, can you just – are you saying you didn’t think you needed an AVO, or are you disagreeing with what he just said?---I – it wasn’t because I didn’t think I needed an AVO. I was actually really frightened of the repercussions.’
The wife was then cross-examined on narrative one (1) of three (3), above, and agreed that she had told the police, in effect, the information recorded down to the point where it stated that she believed the husband had no right to be on the property.
In respect of the history given to police of a verbal argument only, and her signed declaration that she held no fears for her safety, the wife’s evidence was:
‘… Now, I put it to you that that is what actually happened on that day?---That is what I was coerced into signing, yes.
Coerced by who?---The police.
Really?---Yes
Tell me about this coercion. Who coerced you?---I was in a state. I was very – I was in shock at what had occurred. I called the police. They didn’t – I called the police earlier than that but they didn’t get there until that point and also my son was at football training and I was very – completely distressed and crying. Ms N stayed with me, which was good, and because they were saying to me AVO, AVO, AVO, and I didn’t understand what it meant. I was just – I didn’t know what the enormity of that was. I didn’t understand what it was. And they signed it to say that that’s – that this is – they asked me to sign it, but at the time, which is why I disputed it later, I didn’t actually know what I was signing. I know I signed it but I didn’t actually realise what it was that I was signing. It was not made clear to me at that time what it was all about. I was in a very big state of shock.
Well, I put it to you that you were not and that you were able to give a clear account of what happened, none of which included you being pushed onto the bed or assaulted or threatened in any way?---That is untrue.’
In re-examination she gave the following evidence:
‘You gave some evidence about being frightened to take out an AVO because of the repercussions. Can you elaborate on that?---Yes. I didn’t actually really understand what an AVO meant because I had never needed to know what an AVO meant. I had all sorts of things running around in my head. I was concerned at the time, on reflection of it, as well. At the time I was actually really concerned for Mr Metzer’s job. I didn’t know what that would mean if he might not be able to perform – to continue in his job as a public servant if he had an AVO out. I didn’t know that. And I was also concerned for X and the repercussions that that might have for him if I did go through with that with his father, and I didn’t want that for X either. Yes. I have a very different understanding of it now than what I did back then.’
Verbal abuse, controlling and threatening behaviour
The wife also gave evidence of verbal abuse and controlling behaviour by the husband throughout the relationship and of her concern at watching the husband physically discipline the child.
The wife’s evidence was that she tried to address the husband’s anger with him but that she was always very anxious because if she said something the wrong way or the husband took offence his anger would re-appear. They attended a communication course when she was pregnant and one (1) session of counselling in about 2015, but the husband refused to continue the course.
Her evidence was that there were occasions of ‘normal family times’ and when the husband would be nice to her but that his ‘angry periods’ became more frequent over the span of the marriage and that in the later years of their marriage the husband would emotionally and verbally abuse her and that she would tell him ‘it’s a form of abuse’. Her evidence was that on a number of occasions he told her to ‘shut up’ when they were out with people.
Her evidence was that she was not able to use a variety of appliances because of the husband’s concern about the cost of electricity and the associated waste of money. These included the dishwasher, the dryer, the second telephone landline handset, and the air-conditioner at times. She had to charge appliances after 10:00pm when off-peak electricity was available. She said she was scared on two (2) occasions when she used these items when the husband was away and the electricity bill went up and the husband noticed and called the electricity company to complain.
She said she also had to make sure the shower screen was closed after a shower, so it would dry, and if it was open he would yell. She also tried to avoid marks on the walls of the house.
The husband denied the allegations of controlling behaviour regarding electrical appliances. He agreed in cross-examination that there were disagreements about using the clothes dryer and the air conditioning when he did not believe they needed to be used, and that he believed the wife was unnecessarily using electricity at times, but denied these were ‘conflicts’. He said he became frustrated rather than angry. He agreed that he asked the wife and the child to close the shower door after use so it could dry because there was no natural ventilation. He also agreed there were discussions about how to hang his shirts on the washing line to avoid creasing.
His evidence was that these were the normal family interactions between people disagreeing about expenditure and running a household.
The husband denied that he spoke aggressively and swore at her for the way she performed household tasks or that he was regularly abusive to her. His evidence was that as the relationship deteriorated there were arguments in which both parties were yelling and swearing at each other.
In cross-examination the husband maintained his denial of family violence. He agreed that he got angry from time to time and that there would be verbal fights with rude words being exchanged, however, he denied it was solely him verbally abusing the wife and said this came from both parties. They shouted at each other. He agreed that he raised his voice at the wife during the renovations, although he would not agree it was shouting, and said that the wife was the one shouting. He agreed he might have used the word ‘fuck’ with a raised voice in arguments with the wife over the course of their relationship. He also agreed that he told her to ‘shut the fuck up’ twice in public but denied he called her a ‘fucking cunt’.
He denied that towards the end of the relationship he was developing a real hostility towards the wife and said that he was not irritated but rather felt drained and was sick of listening to the wife’s complaints, although agreed there were times when he got angry.
The husband agreed in cross-examination that he attended an anger management course during the litigation, however, his evidence was that while he did not think it was necessary, his solicitor suggested he attend in the context of parenting proceedings to show the Court he was being proactive and that he took the advice. I infer nothing from this other than that the husband accepted prudent legal advice in parenting proceedings.
The husband accepted that he had been involved in a dispute at a bar in 2018 with security guards as set out in the police records. It appears he received a certificate pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with a finding of guilt but no recording of an offence. Having reviewed the police material I draw no inference from the circumstances of the event that this supports the wife’s case that the husband is a violent person.
Physical disciplining of the child
The wife’s evidence in chief was that this was when the child was about five (5) years old and was ‘pushing boundaries’. She said that when the child dropped a plastic toy he was banging, the husband struck the child on the legs several times with the toy and that there were welts. The wife gave evidence of watching the husband use a leather belt to strike the child across the buttocks and legs between the ages of five (5) and ten (10). The wife also tendered copies of photographs of these injuries. In particular, the wife said that ‘I never agreed or consented to [the husband] being physically violent towards [the child]’ although she conceded that she had ‘smacked [the child] on the bottom when he was younger as part of discipline…but mostly [she] used “time out”’.
The wife in cross-examination conceded that she had also used a wooden spoon or her hand to smack the child when he was misbehaving.
The wife agreed in cross-examination that she had allowed the child to spend time with the father, including traveling overseas.
The husband was cross-examined on the wife’s allegations. He conceded to using a belt to discipline the child until he was about ten (10). He said he only did this about five (5) times between ages of five (5) and ten (10) when the child was not doing what he was told despite being repeatedly asked and when he was repeatedly arguing back.
He said the child liked to push the boundaries, which was what the wife had said, and that this was the way he himself had been disciplined when being raised to learn to respect his parents and have manners, and that this was how he wanted to raise the child.
He agreed the wife confronted him on one occasion saying ‘do you really have to do that’. He also agreed that he did recall one day after belting the child that he thought that he’d ‘gone a bit heavy there’. [CT31.20]
Effect of domestic violence on wife
The wife’s evidence was that as a result of the husband’s attitude to the child she felt she had to be hyper-vigilant at all times and that her life was like walking on eggshells. She said his negative comments undermined her confidence and self-esteem and made her feel worthless and that there were no better options.
Her evidence was that to avoid conflict she always tried to have the house cleaned and nothing out of place even if she was tired on returning from work. She made sure the power point for appliances not in use were switched off, closed the garage door and the shower screen door after use and was hyper-vigilant about being yelled at.
The wife’s evidence was that post-separation she had treatment including counselling and medication for anxiety and depression, which she attributed to the husband’s treatment of her during the relationship rather than to the break-down of the relationship. There was no evidence from any qualified expert on the question either of the wife’s psychological state or capacity, including as it might impact on earning capacity.
The wife did not give evidence of any impairment of her capacity to work and earn her income during the relationship.
Finding
The wife bears the evidentiary onus. I start with the alleged physical assault on 12 May 2017 which the parties focussed on.
This was the only time the wife had called the police during the relationship. The inference from her evidence was that she called the police on this occasion because, unlike other occasions, there was a physical assault which had a serious impact on her as described in her evidence. In those circumstances the wife would have been expected to report the physical assault.
The wife agreed she told the police the information recorded about her ownership of 70% of the property, and her belief that the husband was not entitled to attend the property to recover his own belongings. In the context of the material, it was recorded that her belief appeared to be the primary reason for the wife involving the police. Significantly, that same mistaken belief was also the recorded reason for her application for an AVO six (6) days later.
Despite her evidence in chief that at the time she was ‘in shock, hysterical, crying and uncontrollably trembling’ at no point do any of the police notes record a complaint of a physical assault.
The wife signed a police notebook declaration that she held no fears for her safety or the safety of her property.
The police spoke to the husband later and told him the recorded version of events. The husband agreed with the version as he still does.
The second attendance on police six (6) days later was recorded to be to report that the husband was texting her asking for rent money for the house and to spend time with the child. There was no record, nor evidence in this case, that the texts were threatening. It is not clear what she considered irregular about the husband wanting to spend time with the child post-separation.
As recorded, the wife’s basis for seeking an AVO at that time was to stop him attending the house due to a concern that he would attend the house to ‘obtain his own belongings… whilst she [was] overseas working’. On the face of the record, the wife wanted an AVO because she maintained her belief that she was entitled to exclusive occupation of the house and entitled to deny the husband access to ‘his own belongings’.
The wife gave two (2) different answers to the question of whether or not she asked for an AVO. Her first answer was that she did not seek an AVO on the day of the event, despite the police asking her if she wanted one, because she was frightened of the repercussions. In re-examination she confirmed that version of events, adding that she did not understand what an AVO meant and clarifying that the repercussions that concerned her were related to the child and that the husband might lose his job.
However, her complaint to police in narrative three (3) of three (3) above was that she was pushed into not taking out an AVO by police, and that was also a version she confirmed in her oral evidence saying that she was ‘coerced’ into signing the declaration that she did not hold any fears for her safety.
While the wife sought to deal with the question of the AVO, at no point in her evidence did the wife directly address the issue of whether or not she reported the physical assault to the police, or, if not, why not.
The husband’s submission was, in effect, that: the contemporaneous records made on the day, and six (6) days later, were inconsistent with the wife’s allegation of physical assault, as no physical assault was recorded. The wife did not give any satisfactory evidence about that topic. Her evidence about the AVO was inconsistent and unreliable. The records were consistent with the husband’s evidence that he attended and the parties engaged in a mutual verbal dispute as they had throughout the relationship. The explanation for the police involvement is the explanation recorded which was that the wife thought she was entitled to exclude him from the property. She agreed she told the police that. This was the reason she repeated six (6) days later. She only complained about the police six (6) months later in the shadow of the commencement of proceedings.
The husband’s case was that accepting the records at face value would result in a finding that the wife was fabricating the physical assault as a way of exaggerating the history of mutual verbal conduct into a Kennon & Kennon claim for financial gain.
I give significant weight to the contemporaneous police records, of 12 and 18 May 2017. A victim may not contact police or report events fully for many reasons. In this case the one (1) occasion when the police were called was post-separation. There is a cogent reason for police involvement, which is the wife’s belief she was entitled to exclusive occupation of the property, which she agreed she told them.
She repeated that explanation when seeking an AVO a week later. On that second occasion, when out of the immediate shock, she again did not express any fear for her personal safety nor raise the fact that there had been a physical assault. She referred to text messages and her concern the husband would attend to obtain personal belongings when she was away.
The wife’s evidence on the issue of the AVO, on its face, contained inconsistencies and no submissions were made explaining how those inconsistencies could or should be reconciled by the Court.
The wife did not squarely address the issue of whether or not she told the police about the physical assault.
In these circumstances, and on balance, noting the relevant onus factors set out above, I am not persuaded that the events of 12 May 2017 were other than as recorded by police.
The rest of the evidence is equivocal. The subject matter of the arguments was common-place. Obviously people can argue about the same subject matter civilly, or those arguments as conducted may be such as to constitute family violence. I am not satisfied that the wife has met the evidentiary onus on this issue to establish family violence as required to found this claim. Similar factors apply to the disciplining of the child.
Accordingly, I find that the wife has not established the factors required to enliven an assessment of a further alteration of property interests pursuant to the principles in Kennon & Kennon.
E: Effect on earning capacity of proposed orders
It was not submitted that there was any impact on either parties earning capacity as a consequence of the proposed orders.
F: Section s75(2) matters
The issues raised by the parties were: the wife’s state of health and diminution of earning capacity post the age of sixty (60); the wife’s ongoing care for the child; and the parties’ current relative earning capacities and earnings.
The wife’s health and it’s likely impact on her future earnings
The wife gave evidence that in 2007-2008 she experienced pain in her left hip. An acetabular labral (hip socket) tear was repaired in 2009. A fall down stairs at work and a minor car accident caused a recurrence of left hip pain. The wife continued working but in 2011 had a total left hip replacement with thirteen (13) weeks off work. In 2012 she had a total right hip replacement, due to wear from compensation for the left hip, with eleven (11) weeks off work. The wife’s evidence was that she continues osteopathic treatment.
In 2018 the wife suffered a workplace injury to her right shoulder. She had arthroscopic surgery in 2018 and returned to light duties in 2019.
The wife’s evidence was that her current work was physically demanding and she finishes a sector with pain in her hips and lower back.
At the time of hearing the wife had returned to work on what she described as light duties. Her evidence was that she hoped to be able to return to pre-injury duties and intended to work as long as she could.
Further, she had been offered a promotion to manager, which would involve the same physical work but an added management responsibility and an increase in salary, although the evidence of the offer did not specify the salary increase and there is no evidence as to what that new salary might be. She did not suggest she would not take the promotion.
Her current light, or suitable, duties involved working at the employer. She stated that this did not involve anything ‘physical whatsoever’.
The medical evidence
The parties each relied upon expert medical evidence. The wife qualified Dr O and the husband Dr P.
During the course of the hearing, and prior to being called, the experts participated in a joint conference, or conclave, and produced a joint report dated 21 March 2019, which was admitted into evidence by consent. As a consequence, the doctors were not required for cross-examination.
The outcome of that conclave was agreement that:
a)the wife’s hips should function satisfactorily for 15 years;
b)the right shoulder was likely to have ongoing mild restriction which would impact on capacity to do overhead work, and to do CPR if required;
c)there was metatarsal arthralgia (joint pain) of the MTP (metatarsophalangeal) joint of her right great toe which would cause difficulty and pain when operating the brake pedal; and
d)there were degenerative changes in her lower back.
The right shoulder, right big toe and lower back were expected to deteriorate causing increased stiffness over the next five (5) years leading to likely premature retirement from pre injury duties as a customer service officer at age sixty (60).
Wife’s earning capacity post-60
There was no evidence of the wife’s likely earning capacity or earnings post-60.
The types of restrictions and issues identified would stop her working as a customer service officer, but, quite reasonably, it was not suggested for the wife that she would not have a residual earning capacity.
There was no evidence of what that residual earning capacity would probably be, having reference to the five(5) major factors usually considered when identify earning capacity, being:
a)physical capacity, including the reasonable restrictions required by reason of injuries;
b)psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
c)vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
d)labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
e)earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.
The husband’s submission was that as the party seeking the adjustment on this basis the wife bore the onus.
The wife submitted that neither party bore the onus and the Court had to do the best it could by taking a common-sense approach. [CT105.5]
In many jurisdictions in which future likely earning capacity is assessed, the legal onus remains static, but the evidentiary onus to establish residual earning capacity reverses when a person cannot perform their pre-existing job: see Kallouf v Middis [2008] NSWCA 61 at [53] citing Linsell v Robson [1976] 1 NSWLR 249 at 254 – 255. However, the reasoning in such cases relies either upon the presence of a tortfeasor, a statutory liability or the presence of an insurer.
As between the parties in a case pursuant to the Act there does not appear to be any basis, either in s.75(2) or s.79, or elsewhere in the Act, for a reversal of the evidentiary onus from the usual rule that the person who asserts a fact must prove it.
Accordingly, I find that the wife bore the evidentiary, as well as the legal, onus to establish the likely effect on her future earnings post age 60 of the stablished likely reduced physical capacity and restrictions.
The husband also submitted that as the shoulder injury was accepted as a workplace accident, Employer E had a duty to provide workers compensation or suitable duties employment to age sixty-seven (67).
The changes to the Workers Compensation Act 1999 (NSW) (‘WCA’) introduced in 2012 significantly reduce the rights to workers compensation and there is insufficient evidence of the wife’s relevant whole person impairment to determine what if anything her entitlements would be post-60.
However, Employer E would have an obligation to provide suitable duties, within certain parameters, and again while it appears likely that such a large organisation would be in a position to do that, noting the wife’s current suitable duties ground role involves no physical lifting. There is no evidence whether such duties, in the long run, would be available or if so would return a lower income. This uncertainty is not the husband’s evidentiary problem.
There is no doubt that the wife has established a likely future diminution of earning capacity from age sixty (60) by reason of her state of health and physical capacity for her current duties. However, she has not established that the diminution in capacity will necessarily, or even is likely to, result in a diminution of earnings of any particular amount. She has a broad range of skills and experience and moderate anticipated physical restrictions, and for example if she is provided with suitable ground based duties by Employer E her loss may be nothing or nominal.
Having said that, in the context of the broad approach which this Court must take to the assessment of factors when considering what is a just and equitable adjustment of property interests pursuant to s.79, I find that it would be appropriate to consider this as a factor, but that in the absence of any evidence of the likely future reduction of income, this is a factor which could justify only a very small further adjustment in the wife’s favour.
Care of the child to age 18
The wife will have the continuing primary care for the child. Although the father is paying child support this will entail additional work for the remaining 2 ½ years until he is eighteen (18). Some allowance should be made for this, noting that the care requirements of a sixteen (16) year old are different to those for a younger child.
Relative earnings
The husband prepared the following comparison table which was not disputed:
| Financial Year | Husband | Wife |
| 30 June 2015 | $73,407 | $91,040 |
| 30 June 2016 | $86,446 | $78,069 |
| 30 June 2017 | $107,467 | $74,664 |
On the husband’s evidence, he is working full-time, earning an estimated $86,290 per annum from Employer W, as well as earning additional income from ad-hoc labouring work at an estimated $150 per week before tax, and casually for Employer DD earning an estimated $150 per week before tax.
He pays $350 per week in rent and $277 per week in child support.
His evidence was that in approximately mid-2018 he was advised his labouring shifts would be reduced which left him concerned as to his financial situation and prompted a relocation from Suburb EE to the Region M. The husband currently commutes to Sydney for work and he intends to relocate back to the Sydney area at the conclusion of the proceedings.
The husband’s evidence is that he is currently fifty-six (56) years of age, working physically demanding jobs with the hope that once proceedings conclude he will return to Sydney and be in a position to rely on working one full-time job, which will reduce his income back to about $86,000 per annum, until he reaches the usual retirement age.
The wife’s income is in the same range as set out in the schedule. If she takes the promotion offered it will increase by an unknown amount.
There is no basis for finding a disparity between the parties’ incomes to justify allowing any additional adjustment to the wife.
Finding
Taking into account evidence that there is a diminution of capacity but noting that the likely loss of earnings is not established, and that the wife will be primarily responsible for the child of the marriage till he reaches his majority, I consider it appropriate to allow an additional adjustment of 2% in favour of the wife.
G: Decision
As set out in section C above, net total non-superannuation assets are $1,259,961, with superannuation of $704,386 for the combined net total of $1,964,347. Excluding the house there are net non-superannuation assets of $309,961 of which the wife presently has $116,275 and the husband $193,686.
For the reasons given above I find that it is appropriate, just and equitable to adjust the property interests of the parties so that the wife receives 60% and the husband 40% of the net assets and liabilities including superannuation of $1,964,347. That is $1,178,608 to the wife and $785,739 to the husband.
In order to achieve a result of 60% to 40% as set out above, and assuming the parties keep their own superannuation and their own assets and liabilities other than the house, the parties will need to receive a proportion of the house to give them net assets as follows:
Husband
Wife
Non superannuation net assets
$657,715
$602,246
Superannuation
$128,024
$576,362
Total
$785,739
$1,178,608
The wife sought a superannuation splitting order in favour of the husband in the sum of $100,000 because of her concern that she would not be able to afford adequate housing for herself and the child with a large percentage of her net wealth in superannuation, and noting that the relevant Employer E trustee had been given notice.
That would result in the following distribution:
Husband
Wife
Non superannuation net assets
$557,715
$702,246
Superannuation
$228,024
$476,362
Total
$785,739
$1,178,608
The husband opposed this, for the same reason as he also seeks to re-house himself.
I accept that some superannuation splitting order is appropriate but that it should be $50,000 to put the parties in relatively equivalent positions in this regard, noting the wife must also house the child for at least a period.
This will result in the following distribution:
Husband
Wife
Non superannuation net assets
$607,715
$652,246
Superannuation
$178,024
$526,362
Total
$785,739
$1,178,608
I consider the distribution immediately above to be the just and equitable result.
I also consider that the wife should be given the opportunity she seeks to re-finance and purchase the house so that she and the child can continue to live there, but if that cannot be accomplished the house will need to be sold and the proceeds distributed to achieve the above result.
If the wife cannot make this payment within forty-two (42) days, the house will need to be sold and the net proceeds divided to attain a distribution of the appropriate percentages.
To achieve the result in addition to the superannuation splitting order the wife will need to pay the husband the sum necessary for him achieve $607,715. As his non-superannuation net assets are $193,686 that is $414,029.
If the wife cannot pay that sum the house is to be sold and the actual net proceeds are to be divided accordingly to the following formula:
a)Where
i)The net proceeds of the sale of the house are $A;
ii)$W = $642,637, based on $116,275 + $526,362;
iii)$H = $371,710, based on $193,686 + $178,024; and
iv)A + W + H = Z
b)The husband is to receive $B and the wife $C from A so that:
i)$H + $B = 0.4 x $Z; and
ii)$W + $C = 0.6 x $Z.
I make orders accordingly.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 24 January 2020
Key Legal Topics
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Family Law
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Equity & Trusts
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