Mynatt and Siddall & Anor

FAMILY COURT OF AUSTRALIA

MYNATT & SIDDALL AND ANOR

[2020] FamCA 40

FAMILY LAW – PROPERTY – Where both the de facto wife and the de facto husband have case guardians appointed – Where the only significant asset is half an interest in the former matrimonial home – Where there are a number of caveats lodged against the title of the former matrimonial home – Where the Court finds that the wife’s contributions were made significantly more arduous due to the family violence perpetrated by the husband – Where the husband is ordered to pay the wife a sum of money.

Family Law Act 1975 (Cth) s 44(6)

Aleksovski v Alekovski (1996) FLC 92-705; [1996] FamCAFC 111
Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCAFC 45
Britt & Britt (2017) 56 Fam LR 526; [2017] FamCAFC 27
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Maine & Maine (2017) 56 Fam LR 500; [2016] FamCAFC 270
Rodgers & Rodgers (2016) FLC 93-703; [2016] FamCAFC 68

APPLICANT:

Ms B Mynatt as Case Guardian for Ms Mynatt

RESPONDENT:

Mr Siddall

2^nd RESPONDENT:

Mr G Siddall

FILE NUMBER:

WOC

411

2014

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Rebecca Bailey & Associates

COUNSEL FOR THE RESPONDENTS:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Unified Lawyers

Orders

Pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) a property settlement order be made in the terms of paragraphs 2 and 3 below.
Within two (2) months of the date of these Orders, the husband shall pay to the applicant, to be held on behalf of the wife, the sum of $168,000.
In the event that the husband does not make the payment referred to in paragraph 2 then:
(a)The husband and the 2^nd respondent do all things and sign all necessary documents to sell the property situated at and known as D Street, Suburb E (“the Suburb E property”) by a private treaty at a price to be jointly nominated in writing by the husband and the 2^nd respondent to the applicant and approved by the applicant in writing and that the net proceeds of the sale of the Suburb E property be distributed as follows:
(i)Payment of the costs of sale including agent’s commission, legal fees and rate adjustments;
(ii)Discharge the mortgage on the Suburb E property;
(iii)Payment to the applicant of the sum of $168,000 together with interest to be calculated commencing two months from the date of these orders at the rate specified in the Family Law Rules;
(iv)Payment of the sum of $100,000 to T Lawyers; and
(v)Balance to be held in the account of the solicitor instructed by the respondents to carry out the conveyancing transaction until any claim by Ms U Siddall or Mr V Siddall is finalised between those persons and the respondents.
(b)The respondents shall nominate in writing to the applicant an agent and a solicitor for the purposes of facilitating a sale of the Suburb E property and the applicant shall approve those nominations in writing.
Liberty granted to the parties to relist the matter for the implementation of these orders on 7 days notice, including any dispute that might arise with any person who has lodged a caveat on the Suburb E property, any difficulty with obtaining a withdrawal of a caveat, and any issue in relation to the determination of a listing price or the agent or solicitor to be appointed to carry out the sale.
The orders of Deputy Chief Justice McClelland of 21 August 2017 are discharged and in their place and pending the payment of $168,000 being paid to the applicant pursuant to paragraph 2 or the payment referred to in paragraph 3(a)(iii), the following order is made:
(a)That in the event that the Suburb E property is sold either by or on behalf of S Bank, then S Bank and/or the respondents cause to be paid from the proceeds of sale of the property after payment of the amount properly payable to S Bank, an amount of $168,000 or the amount referred to in paragraph 3(a)(iii), whichever is greater, into the trust account of the applicant’s solicitors.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mynatt & Siddall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 411 of 2014

Ms B Mynatt as Case Guardian for Ms Mynatt

Applicant

And

Mr Siddall

Respondent

And

Mr G Siddall

2^nd Respondent

REASONS FOR JUDGMENT

Case Guardians have been appointed for both of the parties. The wife’s mother (“the applicant”) has been appointed Case Guardian for the de facto wife (“the wife”); the husband’s father (“the respondent”; who is also the 2^nd respondent in these proceedings) has been appointed Case Guardian for the de facto husband (“the husband”).
The applicant seeks a property settlement order and the respondents oppose that order being made.
The parties were together for between 9 to 11 years and there is one child of the relationship, who is currently 9 years of age. The child is currently living with the applicant pursuant to orders of the Children’s Court. The parties’ relationship features a history of mental health issues for both the husband and wife, and domestic violence and drug related issues.
The only significant asset is half of the former matrimonial home at D Street, Suburb E (“the Suburb E property”) which the husband holds as tenants in common with his father, the 2^nd respondent. The 2^nd respondent has been joined to these proceedings as the applicant seeks the sale of the former matrimonial home.
The husband’s half interest in the Suburb E property has an agreed value of $737,500.
There is a first mortgage registered on the Suburb E property to S Bank. There are also five caveats lodged against the title of the Suburb E property, by sequentially:
a)The wife, pursuant to orders made by Judge Altobelli on 14 August 2014 and a claim of a constructive trust;
b)The law firm “T Lawyers”, in respect of legal fees owed by the respondents;
c)Ms U Siddall (the husband’s mother and the former wife of the 2^nd respondent), in respect of an alleged debt of $110,000 owed by the husband to his mother which funds were applied to legal fees;
d)Mr V Siddall (the husband’s son), in respect of an alleged debt of $85,000 owed by the husband to him which funds were also applied to legal fees; and
e)Ms U Siddall (as regards to the interest of the 2^nd respondent only).
The husband’s mother and son were both aware of the proceedings and the orders being sought by the applicant. Further, on 14 November 2019, the respondents’ former solicitors, T Lawyers, were joined as parties to the proceedings. T Lawyers claim that the respondents owe $141,328.97 in outstanding legal fees under a cost agreement which created a charge on the Suburb E property. They had lodged their caveat relying upon that charge.

Applications

The applicant sought that leave be granted for the wife to file an application for a final property settlement order out of time. On 23 October 2019, I made an order that pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), leave be granted to the applicant to apply for a property settlement order pursuant to s 90SM of the Act.
Upon granting that leave, the applicant sought that the husband pay her an amount of $275,000 within a period of one month from the date of these orders. Further orders for the sale of the Suburb E property were sought by the applicant in the event that the husband failed to make the payment.
The husband and the 2^nd respondent sought that no property settlement order be made and that the applicant’s Further Amended Initiating Application filed 18 November 2019 be dismissed.

Documents relied upon

The documents relied upon by the applicant are set out in Schedule 1.
The documents relied upon by the respondents are set out in Schedule 2.
The parties also relied upon a Notice to Admit Facts filed by the applicant on 6 August 2019 and the respondents’ Notice of Disputed Facts filed by the husband on 13 September 2019.

Credit

The wife

The wife did not give evidence during the proceedings. I accept counsel for the respondents’ submission that the wife was so unwell that she was not able to give evidence or attend the hearing. Given those circumstances, any evidence which relies upon statements made by the wife are given no weight unless otherwise indicated.

The applicant

The applicant gave her evidence in a forthright manner. Her evidence was sourced both from her direct knowledge and information the wife had told her in the past. She made appropriate concessions during cross examination. I accept the evidence of the applicant to the extent that she can give direct evidence about relevant matters but as I have said, I place no weight on information provided to her by the wife unless otherwise indicated.

The husband

Upon the husband giving evidence is these proceedings, I observed many occasions where the husband said that he did not know something or where he was unable to remember something and I concluded that he was being evasive. The following are examples of the husband giving untruthful or inconsistent evidence:
a)The husband, in his 2014 affidavit, gave evidence that in 2005 he remortgaged the Suburb E property for $60,000 and applied those funds to holidays and two motor vehicles. The husband agreed that this was inconsistent with paragraph 30 of his trial affidavit which stated that the loan was also applied to fund IVF treatment for himself and the wife. Counsel for the applicant put to the husband that the reason he omitted that detail was at the time he swore his 2014 affidavit it was his case that the wife and him were not in a de facto relationship. The husband’s response was that he could not recall giving that evidence;
b)Further, at paragraph 15 of his 2014 affidavit, the husband stated that “at no time have I been a drug user and even have documentation to prove this”. The husband conceded that this was an untruthful statement. At paragraph 82 of his trial affidavit he stated:
I concede to engaging in drug use throughout the relationship, including ice, cocaine, ecstasy and marijuana. I have never taken heroin. [The wife] and I took all these drugs together on multiple occasions…
Further, counsel for the applicant took the husband to a number of letters that he had written whilst he was in prison. On 12 September 2011, the husband wrote “… you know what we were doing ½ to 1 gram of ice a night 2 bottles of red wine a night every night, for 2 ½ months” and on 3 October 2011 wrote “… you can’t be real [the wife]. Fuck them off … they were not there with all our drug binges, coke, acid, speed, ice, ekkys, mda…” The husband agreed that these were accurate descriptions of their consumption habits;
c)Counsel for the applicant took the husband to the application form he and the 2^nd respondent made to S Bank on 9 July 2014 when applying for a $200,000 loan. That application included the husband and the 2^nd respondent’s signatures which acknowledged that the contents of the document were true and correct. Under the section “Financial Position Statement”, the husband and the 2^nd respondent put that they owned a Motor vehicle W worth $45,000 and a Motor vehicle P. The husband contended that whilst he drove a Motor vehicle P, this was owned by his sister. The husband admitted that he had declared these assets to S Bank to exaggerate his financial position. Initially, the husband gave evidence that he no longer owns the Motor vehicle W as it “went to the wreckers about a year ago”. The husband was taken to his Financial Statement dated 23 July 2014, where under the motor vehicle section he had said “Nil”. The husband initially gave oral evidence that he probably didn’t have the Motor vehicle W at that stage. Counsel for the applicant asked whether the husband had disposed of the Motor vehicle W sometime between the date he made the loan application on 9 July 2014 and the date he swore his Financial Statement on 23 July 2014. The husband denied he disposed of it then, stating that he had the Motor vehicle W for at least 3 or 4 years. Consequently, the husband had given false evidence about the Motor vehicle W both in writing and orally;
d)The husband denied that he had received a number of requests from the applicant’s solicitors asking for disclosure documents throughout the proceedings. Counsel for the applicant took the husband to emails sent on 23 July 2014, 6 August 2014 and 11 February 2015 seeking information and disclosure. The husband said that the reason he had not seen those emails was because he had changed his email address at the time and had stopped using the address the applicant’s solicitors had. Counsel for the applicant took the husband to an email dated 2 March 2015, which he had sent to a number of politicians from the email address he had given evidence he had stopped using;
e)As discussed in more detail below, the husband gave inconsistent evidence in respect of why he was receiving a disability pension, firstly giving evidence that he had started receiving the disability pension in 2004 due to his back injury but then conceding that in the cohabitation agreement from 2002, there was reference to him receiving a disability pension in respect of a shoulder injury. Further, the husband initially denied that his delusional disorder was the basis, or part of the basis, for his receipt of the disability pension. However, his oral evidence then changed, stating that it “maybe” a basis for the disability pension and that his diagnosis of a delusional disorder prohibited his work as a tradesman because it inhibited his ability to “communicate with people”.
The husband, whilst he was incarcerated, wrote a letter (which is addressed to the wife, but which he says was never sent), stating:
A week before the court date go and get a letter from Dr Z for me saying that I suffer from mental illness and am very forgetful and that I would have been unaware of my AVO conditions.
The husband agreed that he did have a mental illness and that he was forgetful. In terms of the general inconsistencies in respect of the husband’s evidence, I do accept that that has been exacerbated by his mental health issues which are discussed in greater detail below.
I conclude that, in relation to any matter where the applicant puts the husband’s evidence into issue, that unless the husband’s version is supported by an undisputed piece of corroborative evidence or is inherently likely, I am unable to accept the husband’s evidence, although where relevant, I will record what he says.

The 2^nd respondent

At the commencement of the cross examination, the 2^nd respondent confirmed that he had not read all of his affidavit, notwithstanding that the affidavit is only six pages. There was a short adjournment, which allowed the 2^nd respondent to read his affidavit, and upon his return, he said he was “shocked” and that he didn’t like some of what had been written in it. I am reluctant to place any weight on that affidavit.
I accept the following evidence from the 2^nd Respondent:
a)He is currently retired, but worked in the transport industry for 57 years. He worked hard, around 10 hours a day, and that he would have to wake up at 2 am;
b)He didn’t read the S Bank loan application or his 2014 affidavit before he signed it;
c)The owner of the Motor vehicle P was the husband’s sister; and
d)The husband had introduced the wife as his girlfriend at the beginning and the wife hadn’t paid him a cent.

Chronology

In 1939, the 2^nd respondent was born and is currently 80 years of age.
In 1963, the husband was born and is currently 56 years of age.
In around 1963, the husband’s parents purchased the Suburb E property.
In 1977, the wife was born and is currently 43 years of age.
In 1987, Mr V Siddall, a child of the husband’s previous relationship, was born and is currently 32 years of age.
In 1989, the husband’s parents separated and they agreed to put half of the title of the Suburb E property into the husband’s name as tenants in common with the 2^nd respondent. The husband obtained a mortgage of $65,000 to purchase his half share in the property and the 2^nd respondent paid the stamp duty on the transfer.
In 1996, Mr F, a child of the wife’s previous relationship was born and is currently 23 years of age.
The parties commenced cohabitation in 2000 (according to the wife) or 2002 (according to the husband) when the wife moved into the Suburb E property. It would seem that the husband’s date is more likely because the cohabitation agreement the husband and wife entered into on 24 September 2002, contained the following recitals:
A.[The husband and wife] have been living at the same address since August 2001. [The wife] lives downstairs and [the husband] lives upstairs.
B.[The husband and wife] have developed a relationship and while intending to continue in that relationship wish the provisions of this Agreement to govern the financial aspects of their relationship during the period of five years from the date of this Agreement.
On 24 September 2002, the husband and wife signed a cohabitation agreement which provided that it was only valid for a period of five years.
On 17 November 2003, the wife was diagnosed with Adjustment Disorder with Depressed Mood.
On 10 August 2004, an incident occurred which resulted in the wife calling the police, the details of which are discussed below.
On 2 October 2004, the police attended the Suburb E property, the circumstances of which are discussed below.
In 2005, a mortgage was obtained over the Suburb E property for $60,000.
In 2008, the husband says that Mr V obtained a personal loan for $20,000 to support the husband and wife.
In 2010, X, the first child of the relationship, was born and is currently 9 years of age.
On 30 July 2010, a further incident occurred between the parties, which the police attended and which is discussed below.
On 14 November 2010, the husband was charged by the police with assaulting the wife and her son, Mr F.
On 28 January 2011, the husband was convicted of assault and was fined. An ADVO was issued against the husband for a period of 12 months.
On 3 May 2011, the husband was charged by police with assault of the wife and breach of ADVO and was denied bail. The husband says he was incarcerated for five weeks and asserts that this was the date of separation.
On 9 June 2011, the husband was convicted of assault and breach of ADVO and was placed on a 12 month supervised bond.
On 10 June 2011, the husband was released from gaol.
On 19 August 2011, the wife says the husband punched her in the face, knocking her front tooth out, and continued to assault her over the next 4 days.
On 24 August 2011, the husband was charged with assault occasioning actual bodily harm, common assault and contravening his ADVO. The husband was refused bail.
In October 2011, the husband was convicted of assault and contravening his ADVO and received an 8 month suspended term of imprisonment. The ADVO made in January 2011 was extended to 28 January 2013. The husband was released from gaol.
In December 2011, Mr F moved to live with his biological father.
On 20 December 2011, the husband says the wife was admitted to a mental health institution, but escaped. She was then admitted to hospital for drug-induced psychosis.

On 23 December 2011, the husband was charged by police with assault. The wife says this was the date of separation.
On 28 December 2011, X was removed from the parties’ care by Family and Community Services (“FACS”).
In January 2012, X was placed in the care of Mr V and then into the care of the wife’s parents.
In January 2012, the wife undertook intensive counselling with Domestic Violence and Community Counselling Service and commenced a live in rehabilitation course at the Watershed Program for 4 weeks.
On 3 January 2012, FACS filed a Care Application in the Children’s Court in respect of X.
In March 2012, the wife commenced a 6 week outpatient rehabilitation program.
In 2012, the husband commenced a new de facto relationship with Ms H.
In February 2013, X was restored to the wife’s full time care pursuant to orders made in the Children’s Court. The wife moved in to live with her parents.
On 7 May 2013, orders were made in the Children’s Court permitting the husband to have supervised contact with X six times a year for two hours at FACS.
In July 2013, the wife participated in the “Staying Home Leaving Violence Support Program”.
On 6 September 2013, the husband filed an application to rescind the care orders made by the Children’s Court.
In October 2013, the wife started counselling with Child Protection Counselling Service.
On 12 February 2014, the Children’s Court dismissed the husband’s application to rescind orders and made orders extending the number of times the husband had supervised contact with X from six to twelve.
On 8 May 2014, the wife commenced these proceedings in the Family Court of Australia.
On 13 May 2014, the husband filed a further summons in the Court of Appeal regarding the Children’s Court orders.
On 9 July 2014, orders were made permitting the wife to lodge a caveat on the Suburb E property which she did.
On 14 August 2014, Judge Altobelli made interim orders which permitted the husband to obtain a mortgage of $200,000 and for the wife’s caveat to be removed and then re-lodged upon the mortgage being obtained.
On 30 September 2014, the husband’s company N Pty Ltd secured a $200,000 loan with S Bank with a mortgage on the Suburb E property. The husband and the 2^nd respondent are guarantors of the loan. N Pty Ltd is a company structure under which the husband formally operated as a tradesman. The husband is the sole director and shareholder. The company has not traded since before the parties’ relationship.
On 24 October 2014, the Court of Appeal heard the husband’s Summons in relation to the Children’s Court orders.
On 19 December 2014, the husband’s appeal against the Children’s Court orders was dismissed.
On 30 December 2014, the husband filed a s 90 Application in the Children’s Court seeking to reopen the case.
In March 2015, according to the husband, and in about October 2015, according to T Lawyers, S Bank commenced proceedings in the Supreme Court due to the husband’s defaults on their loan.
On 15 May 2015, the husband’s s 90 Application in the Children’s Court was refused.
In August 2015, a notice was issued by S Bank under s 57(2)(b) of the Real Property Act 1900 (NSW).
In September 2015, the wife’s solicitor became aware that no repayments had been made to the S Bank mortgage and that the mortgage was now in the sum of $300,000.
In October 2015, the wife suffered a psychotic breakdown.
On 8 October 2015, FACS filed an Application to remove X from the wife’s care and the wife was admitted to hospital. FACS placed X in the applicant’s care.
In January 2016, the wife was diagnosed with a major depressive disorder and Post-Traumatic Stress Disorder (“PTSD”).
On 17 February 2016, Davies J, in the Common Law Division of the Supreme Court, struck out a defence and cross-claim which the husband had filed on or about 16 December 2015.
On 9 May 2016, default judgment was entered against the husband, the 2^nd respondent and N Pty Ltd for possession of the Suburb E property and for a monetary sum of in excess of $400,000.
On 20 May 2016, a Writ of Possession was issued in respect of the Suburb E property.
Between July 2016 and 2018, T Lawyers acted for the husband, the 2^nd respondent and N Pty Ltd in proceedings taken against them in the Supreme Court by S Bank.
On 12 July 2016, T Lawyers received instructions from the husband and the 2^nd respondent to make an urgent application to the Supreme Court to have the default judgment set aside.
On 2 August 2016, T Lawyers sent a formal letter of engagement to the husband and the 2^nd respondent.
On 18 August 2016, the Supreme Court made a consent order setting aside the default judgment and made orders creating a timetable for the filing of documents and set the matter down for final hearing on 13 February 2017.
On 15 December 2016, the husband, the 2^nd respondent and N Pty Ltd filed defences to S Bank’s amended statement of claim.
On 16 December 2016, the Children’s Court made an order placing X in the care of the applicant.
In January 2017, T Lawyers lodged a caveat against the Suburb E property.
On 20 June 2017, the wife filed an Application in a Case seeking that the proceeds of sale of the Suburb E property be set aside for the purposes of the Family Court proceedings.
On 21 August 2017, McClelland J made orders that required S Bank to deposit $300,000 into the wife’s solicitor’s trust account in the event that the Suburb E property was sold by way of mortgagee sale.
On 29 May 2018, I made a notation that the husband “will be conceding a de facto relationship between 2000 and 2011”.
In November 2018, following a mediation, orders were made in the Supreme Court, including judgment entered in favour of S Bank in the sum of $280,000 and leave was granted to S Bank to issue a Writ of Possession, with the Writ to lay in the Registry until 1 November 2019.
On 18 December 2018, the 2^nd respondent, Assaf Siddall, was appointed Case Guardian for the husband.
On 29 May 2019, the wife’s mother, Rhonda Mynatt, was appointed Case Guardian for the wife.
In July 2019, the wife was scheduled into the Mental Health Ward at Shellharbour Hospital where she remained for about three weeks.

The parties’ health

The wife’s mental health

As mentioned above, on 29 May 2019, I made an order appointing the applicant as case guardian for the wife.
The wife has been diagnosed with major depressive disorder and PTSD. The applicant gave evidence that the wife is reliant on her disability support pension and is unable to work.
Counsel for the applicant took the Court to a report by the wife’s social worker, dated 6 November 2013, which stated that the wife had self-referred to the Domestic Violence and Community Counselling services on 9 January 2012 (on the wife’s case, approximately two weeks post separation). The report detailed that in the duration of the wife attending the counselling services (almost 22 months) she had been “experiencing difficulty coping with [the husband’s] ongoing behaviour.” The wife’s significant psychological problems during that time were also described in the report. Further, paragraph 111 of the applicant’s affidavit states that:
By 28 December 2013 [the wife] did not feel capable of addressing the property settlement and giving her solicitor detailed instructions about it. She was afraid of filing the application. She was afraid of how [the husband] would react and how she would cope. Her ability to focus was not on dealing with a property application. [The wife] was very focused on the Children’s Court proceedings and Alex…
The husband denied that he was the one responsible for the wife’s current mental health. The husband blamed the wife’s consistent drug habits during the course of the relationship but denied that he contributed to that abuse, stating that it was the wife’s friends from whom they both obtained their drugs and that he didn’t give her the drugs, rather they “shared it”. The husband was taken to a letter that he had wrote on 19 September 2011 which stated:
… we had a bad journey on an evil psychotic drug, it wasn’t [us]… we were drug fucked with a really psychotic evil drug, it takes you to the devil it took us to hell and back… you scared me straight… I could never be angry with you, because I seen what it was doing to you but just kept getting it, it was my fault, I prayed and prayed and kept praying 3-4 times a day that I haven’t harmed you mentally with this evil drug we both were not in a good state.
(As per original)
The husband said that this was in reference to him permitting their joint drug use as opposed to him being the one who procured them and provided them to the wife.
The husband was taken to paragraph 84 of his trial affidavit where he stated that “I have always been worried about [the wife]’s drug use”. Counsel for the applicant put to the husband that if he was so worried about the wife’s drug use, why had he participated in “drug binges” with her. The husband said that it was only after they had the child that the wife went “sour”.
I find that, if for no other reason, because of the wife’s mental health, she has no earning capacity and that is not likely to change.

The husband’s physical and mental health

On 18 December 2018, the 2^nd respondent was appointed Case Guardian for the husband.
The husband, at paragraph 110 of his trial affidavit, said that “In around 2004, I was diagnosed with delusional order. This diagnosis prohibits me from working”. The husband admitted that this was incorrect and that whilst he had been diagnosed with a mental illness around 2004, it was only sometime from 2015/2017 that he had been diagnosed with a delusional disorder.
At paragraph 25 of his trial affidavit, the husband says that he began to receive the disability pension in 2004 due to his inability to work from a bulging spinal disk. The husband agreed that his injury resulted in him having difficulty bending over and lifting heavy objects. The husband confirmed in oral evidence that he had “no doubt” that he commenced receiving the disability pension in 2004. The husband confirmed that he was receiving something less than $350 per week from the disability pension. He said that he probably received the back injury over time and that it was likely due to tiling.
The husband denied having any other disabilities throughout the de facto relationship with the wife. When counsel for the applicant put to the husband that another injury that the husband had was his shoulder, the husband said that whilst he had a “little bit” of a problem with his shoulder, it was not such a problem that he couldn’t work and said it was the difficulties with his back that stopped him working.
The husband was then taken to the cohabitation agreement that he had signed with the wife dated 24 September 2002. That agreement contains a reference to the husband receiving the disability pension due to a shoulder injury. The husband agreed that this was “probably true” and that he received the shoulder injury sometime before the back injury. The husband agreed that it was as early as 2002 that he had, in fact, not been working and been in receipt of a disability pension. The husband gave evidence that the shoulder injury prevented him from shovelling and screeding.
As mentioned above, at first the husband denied that the delusional disorder was the basis, or part of the basis, for his receipt of the disability pension. However, his oral evidence then changed, stating that it “maybe” a basis for the disability pension and that his diagnosis of a delusional disorder prohibits his work as a tradesman because it inhibits his ability to “communicate with people”. The husband couldn’t recall the last time he worked as a tradesman, stating that it had “many years” since he worked as a tradesman in any paid capacity and did not work during the de facto relationship with the wife.
I find the husband has no earning capacity and that is not likely to change.

The current asset pool

As mentioned above, the only significant asset is half of the Suburb E property which the husband holds as tenants in common with the 2^nd respondent. The Suburb E property has a gross value of $1,475,000, with the husband’s interest being in the sum of $737,500.
A brief history of the S Bank debt has already been set out above. On 14 August 2014, Judge Altobelli made orders that the wife withdraw the caveat which she had lodged on the Suburb E property in July 2014; that the husband be permitted to obtain a mortgage over the property and that upon the husband being able to secure a loan for not more than $200,000, the wife be entitled to lodge a further caveat on the property. The husband was also restrained by injunction from further dealing with the property.
It is evident that the husband did not comply with that order because he entered into a fee agreement with T Lawyers which contained a provision which allowed T Lawyers to take a charge on the Suburb E property to secure their legal fees.
On 30 September 2014, N Pty Ltd took out a $200,000 mortgage with S Bank on the Suburb E property, with the husband and the 2^nd respondent being guarantors of the loan. The husband said he applied those funds to the discharge of the previous mortgage and legal fees.
On 2 October 2014, the wife re-lodged her caveat over the Suburb E property. That caveat was based upon the order of 14 August 2014 and a claim for a constructive trust (subject to any claim that might otherwise be made under s 90SM of the Act, which does not create a caveatable interest).
The husband and the 2^nd respondent failed to meet mortgage repayments in respect to the S Bank loan. The amount currently outstanding in respect of the S Bank loan is $310,000. As already mentioned, during Supreme Court proceedings between the respondents and S Bank, judgment was entered in favour of S Bank in the sum of $280,000 and leave was granted to S Bank to issue a Writ of Possession, with the Writ to lay in the Registry until 1 November 2019. The Court was informed that S Bank had indicated that they will not take any action in respect of any Writ of Possession until the outcome of these proceedings are known.
Further, the husband gave evidence that he also owes $137,000 to T Lawyers, $110,000 to his mother, Ms U and $85,000 to his son, Mr V. All of these debts relate to legal fees, paid or owing, associated with Supreme Court, Children’s Court and Family Court proceedings. As detailed above, all of these debtors, plus the wife, have lodged caveats against the Suburb E property. The wife’s caveat has been lodged first in time on the title of the Suburb E property.
Counsel for the respondents argued that when taking into account the husband’s debts, the current property pool would be less than $100,000. Counsel for the applicant sought to challenge the legitimacy of a number of the debts which the husband says he owes to family members which I determine at items 5 to 8 of the balance sheet discussion below.
Counsel for the applicant made the submission that the majority of the debt attributed to the husband (save for approximately $58,000, which was the value of the mortgage at the time of separation) has no nexus to the de facto relationship and therefore, would either not be included on the balance sheet or be added back against the husband during final property proceedings (see Biltoft and Biltoft (1995) FLC 92-614 and Rodgers & Rodgers (2016) FLC 93-703).
It was also argued that due to the order of the caveats and the order made by McClelland J on 21 August 2017 (that requires S Bank to deposit $300,000 into the wife’s solicitor’s trust account in the event that the property was sold by way of mortgagee sale), the wife would have the second priority (after S Bank) to the receipt of the proceeds of sale. The wife, in her further Amended Initiating Application, seeks a variation of McClelland J’s order to reduce the frozen amount from $300,000 to $275,000 (which is consistent with her application for a property settlement order in that sum).
During the course of the hearing, Mr V, the husband’s son, entered into an agreement with T Lawyers that the debt would be in the sum of $100,000 if paid within a period of six months from the date of these orders. Mr V also confirmed that he and his current partner have made an application to the Commonwealth Bank of Australia and have obtained pre-finance approval in respect of a loan in order to purchase the Suburb E property. He explained that this would be done in order to refinance the debt to T Lawyers and S Bank, to prevent the repossession of the property and to ensure that the property would not be further encumbered in the future. He gave evidence that he would need to discuss the matter further with the husband and his grandparents as to what arrangements could be made to make this possible.

Approach to the wife’s application for a property settlement order

In this matter my task is to:
a)Identify, according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
b)Determine whether it is just and equitable to make an order altering those interests and if so;
i)Identify relevant contributions and assess them;
ii)Consider relevant matters referred to in s 90SM(4)(d) – (g) of the Act; and
c)Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

Balance Sheet

During final submissions, each of the parties handed up their own balance sheet (Exhibits 11 and 18). Drawing from those documents, I construct the following composite balance sheet. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers in the following table:

ASSETS
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	H	D Street, Suburb E (50 per cent share)	$737,500	$737,500	Agreed	$737,500
Total assets			$737,500
LIABILITIES
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
2	H	Mortgage to S Bank	$310,000	$29,000	Determined	$225,000
3	H	Personal Loan to Ms U Siddall	$110,000	Nil	Determined	Nil
4	H	T Lawyers	$100,000	Nil	Determined	$50,000
5	H	Personal Loan to Mr V Siddall – in respect of T Lawyers	$85,000	Nil	Determined	$42,500
6	J	Personal Loan with interest to Mr V Siddall in 2008	$27,000	Nil	Determined	$0
7	H	Personal Loan to Mr V Siddall – Family Law proceedings	E$50,000	Nil	Determined	$0
8	H	Council Rates	$12,152	Nil	Determined	$0
Total liabilities			$317,500
Total net assets			$420,000

Item 2 – Mortgage to S Bank

In about 2005, the husband took out a mortgage on the Suburb E property in the sum of $60,000. The applicant gave evidence that, from the conversations she had with the wife and the husband at the time, that money was applied to the 2^nd respondent’s heart surgery, a holiday for them in Country R for two weeks and improvements to the property. The husband contended that the monies were applied to three treatments of IVF, holidays and a new car for the wife. The 2^nd respondent gave evidence that the husband had assisted him in paying for the heart surgery from the loan and that it was a very expensive operation. Accordingly, I prefer the evidence of the applicant about what she was told by both the husband and wife in respect of how the loan was applied.
As mentioned above, in September 2014, N Pty Ltd took out a $200,000 mortgage with S Bank on the Suburb E property. The husband and the 2^nd respondent are guarantors of the loan. This borrowing refinanced a mortgage of $58,000, which was the remnant of the initial borrowing of $60,000. The balance of about $142,000 was used by the husband to fund litigation in the Children’s Court and the Court of Appeal over a period of two years in respect of the care arrangements for the parties’ child.

The applicant relied upon the proposition that at the date of separation, the mortgage on the former matrimonial home was in the sum of $58,000 and half of that amount ($29,000) should be placed on the balance sheet as between the husband and wife in respect of the mortgage to S Bank. The applicant submitted that none of the post separation borrowing should be visited upon her.
It is not controversial that the actual amount currently owed to S Bank by the respondents, pursuant to this mortgage, is in the sum of $310,000. This amount represents the increase in the original borrowing of $200,000 as a result of the effluxion of time and the husband ceasing to make mortgage repayments. The husband gave evidence that in respect of the S Bank mortgage, he had paid the loan for a period of 6 months, until such a time when he wanted to refinance and the mortgagor wouldn’t provide him with his payment records.
As a matter law, the respondents are equally liable for this debt. There was no development in the evidence as to what claim the 2^nd respondent can make against the husband in relation to the use of the funds. On that basis, the amount to be placed on the balance sheet would be $155,000 ($310,000/2).
However, counsel for the respondents argued that it was the husband that got the advantage of this borrowing. As can be seen from the above discussion, that is not entirely accurate as the 2^ndrespondent was advantaged by the heart surgery which was a “very expensive” operation.
It seems, however, reasonable to conclude that the bulk of the borrowing of $200,000 from S Bank advantaged the husband. It is not possible to be mathematically precise in relation to that calculation but I find that the husband should bear the responsibility for $225,000 (or 75 per cent) of the current debt, bearing in mind, that the original borrowing was $200,000.
Counsel for the applicant argued that none of the real current debt should be visited upon the wife and that that liability should not be placed on the balance sheet. Further, counsel for the applicant pointed out that in respect of the monies expended on legal fees in litigation in relation to the child, the husband was only successful on one occasion, namely, in obtaining an order allowing the child to spend supervised time with him on 12 occasions a year as opposed to six. The husband subsequently, voluntarily, chose not to implement that order.
Notwithstanding that, I am not satisfied that the husband has committed any waste of monies spent during the proceedings in relation to the child. An amount in respect of this debt should be added on the balance sheet.

Item 3 – The husband’s personal loan to his mother

The original borrowing was suggested to be in January 2012, which was the commencement of the proceedings in the Children’s Court. This debt, on its face, is statute barred.
Counsel for the applicant submitted that there is no loan document, nor any other written evidence in respect of this debt.
Exhibit 4 contains a caveat (AN546417) which alleges a caveatable interest arising from a loan agreement dated 31 July 2018 between the husband’s mother and the husband. The details supporting the claim state that “Equitable mortgage caveator lent moneys to the registered proprietor over a period of 5 years. Registered proprietor to repay moneys when house is sold”.
Exhibited to the husband’s affidavit of 13 September 2019 is a statutory declaration signed by the husband’s mother on 4 March 2015. This exhibit was objected to and that objection was upheld. The husband’s mother was not called as a witness. The husband was unable to give any evidence about whether or not there was an agreement between himself and his mother to repay this money.
I find that no debt should be placed on the balance sheet in respect of this item.

Item 4 – T Lawyers

On 14 November 2019, T Lawyers was made a party in these proceedings for the purposes of protecting their position as creditors of the respondents. As discussed above, the respondents engaged T Lawyers to act for them in the Supreme Court proceedings. As part of the engagement, T Lawyers required the respondents to provide a charge over the Suburb E property and they lodged a caveat on that property pursuant to that charge. The caveat ranks in priority after a caveat lodged by the wife pursuant to orders of Judge Altobelli on 14 August 2014 and any claim by way of constructive trust.
Counsel for the respondents argued that if not for the husband engaging T Lawyers, the Suburb E property would have been sold and the asset lost.
Mr Greenwood, a solicitor from T Lawyers, gave evidence that:
a)On 9 May 2016, a default judgment had been entered against the respondents and N Pty Ltd in the Supreme Court for possession of the Suburb E property and for a monetary sum in excess of $400,000;
b)On 20 May 2016, a Writ of Possession was executed at 11:30 am on 11 July 2016 when the Sheriff’s Office entered into possession and changed the locks of the Suburb E property; and
c)On 14 November 2018, following a mediation, the matter settled and consent orders were entered in S Bank’s favour in the sum of $280,000.
As a result of these proceedings, the Suburb E property was not sold in 2016.
Counsel for the applicant argued that, as between the husband and wife, the wife should not be responsible for any legal costs incurred. Counsel for the respondents argued that what the respondents did conserved the only asset that is the subject of these proceedings and I accept there is some force in that argument.
As mentioned above, T Lawyers indicated that they had reached an agreement with the respondents that they would accept the sum of $100,000 in lieu of an amount of $141,328 if that amount was paid within a period of 6 months from the date of orders. In those circumstances, T Lawyers would withdraw their caveat on the title of the Suburb E property.
The 2^nd respondent has resided in the Suburb E property since 2016. He was a party to, and had an interest in, the Supreme Court proceedings. He should be equally responsible with the husband in respect of the repayment of the T Lawyers debt.
Accordingly, the amount of the debt I will place on the balance, between the husband and wife, will be the sum of $50,000 ($100,000/2).

Item 5 - Personal Loan to Mr V Siddall in respect of T Lawyers

The husband says Mr V assisted in the legal fees for T Lawyers in respect of the Supreme Court proceedings. The husband says that he now owes his son approximately $110,000 (but which does not include the initial $20,000 borrowed in 2008 as discussed at item 6).
Counsel for the applicant submitted that there was no loan agreement or other documentation in relation to this debt and that the husband had said that his son had provided the money to him on the basis that he “helped me out of his own kindness”. Accordingly, it was argued that the approach taken in cases such as Biltoft and Biltoft (1995) FLC 92-614 and Rodgers & Rodgers (No. 2) (2016) FLC 93-712, should be adopted.
However, Mr V did not, in his oral evidence, resile from his statement at paragraph 18(d) of his affidavit filed 19 September 2019 that his father owed him this debt.
Mr V gave evidence that the amount currently owed is $85,000 and that that is now the figure being asserted by the respondents.
Consistently with the reasons given in respect of item 4, both respondents should be equally responsible with this debt and if any amount is to be placed on the balance sheet in respect of this debt, it should be $42,500.
I find that the husband’s expenditure of this money did assist in the preservation of the Suburb E property and the amount of $42,500 should be placed on the balance sheet.

Item 6 - Personal Loan with interest to Mr V Siddall from 2008

Mr V also gave evidence that in around 2008 or 2009 he loaned the husband and wife $20,000. Counsel for the respondents indicated that they had carried out a calculation to add interest in order to settle on the figure claimed of $27,000. That calculation was not provided and the basis upon which interest was calculated, or indeed claimed, was not in evidence.
At paragraph 33 of the husband’s trial affidavit he says:
In or around 2008, due to myself and [the wife] having a poor credit rating, Mr V took out a personal loan in the amount of $20,000 to support our day-today living expenses. I am in the process of obtaining records evidencing this loan.
Mr V obtained the amount of $20,000 from taking out an AA Bank personal loan. The original agreement between Mr V and the husband and the wife was that they would pay the regular instalments on the loan. Mr V gave evidence that they met the minimal repayment on that loan for approximately six to twelve months and stopped paying the loan thereafter. There is no evidence as to how much principle the wife and the husband paid off. Mr V gave evidence that after the payments stopped, he took over and paid the loan for some (unspecified) time and he then refinanced the loan with other debts. He says that he has now paid the majority of the original borrowing of $20,000.
The husband agrees that in 2008, Mr V obtained a personal loan for $20,000 to support himself and the wife. The husband couldn’t recall how he had received the money and confirmed that there was no written agreement between himself and Mr V in respect of the purported loan and that he had no evidence that the money was ever received.
Counsel for the applicant argued that due to the date of the loan, the debt is statute barred and I accept that submission. Given the history of this asserted debt, I do not intend to add it to the balance sheet.

Item 7 - Personal Loan to Mr V Siddall in respect of family law proceedings

The husband’s legal costs in respect of the Family Law proceedings have not been placed upon the balance as an asset which has been added back. Accordingly, a borrowing for legal fees for these proceedings will not be placed upon the balance sheet.

Item 8 – Council rates

Exhibit 17 is the current rate notice in relation to the Suburb E property showing an amount due of $12,153.37. The husband’s portion of those rates would be half that amount.
Counsel for the applicant asked the husband how long this debt had been accruing and he said over 6 years, maybe 10 years and that he wasn’t sure. The husband was taken to the S Bank loan application dated 9 July 2014, which recorded that the husband and the 2^nd respondent, at that time, had no council debts. The husband confirmed that this was the case and submitted that the total debt of about $12,000 had accrued over the last five years. The husband agreed that the yearly rates on the Suburb E property were in the sum of $1,455 per year as at 2014.
Counsel for the applicant argued that given the wife has not had occupancy of the Suburb E property at the time these rates have been accrued but the respondents have, they should not be placed on the balance sheet. I accept that submission and the rates will not be placed upon the balance sheet.

Whether an order altering interests should be made

The respondents seek that no property settlement order should be made in the circumstances of this case.
The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets or a shared responsibility for liabilities. I am generally mindful of the history of contributions and the existence of s 90SM(4)(d)-(g) considerations which shall be discussed below.
I find that in all the circumstances, it is just and equitable to make an order altering property.

Contributions

The husband could not recall in the witness box the year he commenced a relationship with the wife, saying that he would have to check the cohabitation agreement. He did agree, however, that on 29 May 2018, he had said in Court during a mention before myself that he had agreed to the proposition that he and the wife had a domestic style relationship on and off from 2000 to 2011. The husband denied that he had commenced a relationship with the wife in 1997 or before the wife moved into the Suburb E property.
Whilst the husband owned his one half interest in the Suburb E property at the date of cohabitation, there is no objective evidence as to the value of the property or the amount owing on the mortgage as at that date. Counsel for the applicant took the husband to paragraph 14 of his 2014 affidavit which stated that the Suburb E property was completely paid off with no mortgage in 2002. The husband agreed that this was a true statement. However, paragraph 23 of the husband’s trial affidavit is in the following terms:
At the commencement of the relationship, the mortgage on the Suburb E property amounted to $22,000.00, which I paid in 2003 using solely my wages.
It is clear that these statements are inconsistent. The husband explained in cross examination that he “probably got the years mixed up”. The husband agreed that, in respect of the statement that he paid off the mortgage “using solely my wages”, this was also incorrect as he was, during this time, in receipt of a disability pension.
Further, counsel for the applicant took the husband to paragraph 20 of his affidavit filed 15 December 2017, which is in the following terms:
The amount being part share of our home now under [the husband]’s name, the remainder ¾ shares stayed under [the 2^nd respondent]’s name.
The husband agreed this was incorrect and that at no time did the title on the Suburb E property show the husband owning a ¼ share and the 2^nd respondent owning a ¾ share.
During the relationship, the husband was reliant on a disability pension.
The wife worked as a sales assistant until the birth of X for a period of four years. The husband says that this was for a period of 6 months and that he never received any benefit from the wife’s wage. I am unable to resolve this difference.
In about 2005, the husband took out a further mortgage on the Suburb E property in the sum of $60,000. The applicant gave evidence that, from the conversations she had with the wife and the husband at the time, that money was applied to the 2^nd respondent’s heart surgery, a holiday for them in Country R for two weeks and improvements to the property. The husband contends that the monies were applied to three treatments of IVF, holidays and a new car for the wife. As I have found above, the 2^nd respondent gave evidence that the husband had assisted him in paying for the heart surgery from the loan and accordingly, I prefer the evidence of the applicant about what she was told by both the husband and wife in respect of how the loan was applied.
The applicant contended that the wife received a carer’s allowance, a benefit in respect of Mr F and child support payments, all of which, was applied for the benefit of the family. Initially, the husband denied that this was the case, saying that the wife’s money was her money and that they kept separate accounts during the relationship.
The wife was in receipt of approximately $500 per month by way of child support payments from her previous relationship. Exhibited to the applicant’s affidavit are a number of statements provided by the Child Support Agency, which show the deposit of the wife’s child support payments into the following accounts:
a)From 1 March 2002 until 15 February 2003, an amount of $5,146.31 was paid to the Westpac mortgage account in the husband’s name for Suburb E property;
b)From 25 March 2003 until 13 November 2004, an amount of $9,510.24 was paid to an unknown Commonwealth Bank account;
c)From 11 December 2004 to 18 May 2009, an amount of $25,157.29 was paid directly into the parties joint Commonwealth Bank account and applied to the mortgage, insurances and other living expenses;
d)From 16 June 2009 to 20 September 2010, an amount of $7,719.89 was paid into a Commonwealth Bank account in the husband’s name and was applied to living expenses such as groceries, petrol and furniture, as well as numerous cash withdrawals;
e)From 17 July 2010 to 19 July 2010, an amount of $467.56 was paid to an AA Bank account in the wife’s name; and
f)From 16 October 2010 to 20 December 2011, an amount of $8,012.81 was paid into a Commonwealth Bank account in the wife’s name which she applied to various living costs.
The husband couldn’t recall whether he was the only one with access to the account in his sole name (referred to in [165](d)) into which child support payments had been deposited. Counsel for the applicant drew the husband’s attention to not only the numerous withdrawals associated with living expenses but also the withdrawals associated with gambling. The husband denied that when the parties were together he gambled to excess, stating that spending $80 to $100 per week was “nothing to hurt the budget”. The husband was taken to a number of account statements showing numerous withdrawals from Poker Star whilst the parties were together. When asked whether he still gambled, the husband initially gave evidence that he had not for the last six to seven years. Counsel for the applicant cross examined the husband on bank statements as recently as 1 October 2019, which show withdrawals associated with TAB. The husband agreed that it was most probably the case that in July 2018 he had spent $1,200 on TAB and from July to September 2019 he had spent $967.The husband agreed that this was sports betting but asserted that this was only recreationally and that when he had said he had not gambled for the last six to seven years he was referring to gambling in relation to Poker Stars.
The husband sent a number of letters to the wife whilst he was in gaol in the second half of 2011 which stated “Thank you so much for taking care of things homes, bills etc.” and “I thank you with all my heart for looking after the house for me, and making sure the home loan is paid for me… you are the only one who has stood by me.”
In cross examination, the husband conceded that his contention that the parties had no joint account was incorrect. The husband also conceded that the wife had given him her child support payments for household expenses, but denied that he had demanded the receipt of those funds, stating that, pursuant to the cohabitation agreement, she was merely “paying her way”.
The applicant asserted that she observed the wife undertake the majority of the homemaking and parenting duties during the relationship and made improvements to and maintained the Suburb E property.
The husband disputed this, stating that both he and the wife shared domestic duties. The husband also gave evidence that it was him that bathed and took care of the parties’ child for two years whilst the wife was mentally ill.
The husband denied that the injuries which inhibited his ability to work also inhibited his ability to make non-financial contributions during the relationship such as gardening, cleaning and laundry. The husband contended that he and the wife shared the responsibilities, and said that the parties were assisted by cleaners and gardeners. In respect of the gardening, the husband gave oral evidence that there was a “difference between gardening and tiling”. In respect of the laundry, the husband said that the parties had a clothes dryer.
During the relationship, the wife received a carer’s allowance in respect of the husband. In the husband’s affidavit filed 15 December 2017, the husband stated that the wife had begun to receive a carer’s payment because of his “inability to do certain household tasks”. The husband agreed that this statement was true but couldn’t recall which household tasks he had been referring to. In oral evidence, the husband denied that the wife cared for him physically and said that it was more of a “mental thing”. When pressed for an example, the husband said the wife looked after his paperwork. The husband also admitted that the wife gave him some emotional support during the relationship.

The husband denied that the wife assisted with the installation of the pool on the Suburb E property, stating that the pool had also been complete at the commencement of the relationship. Counsel for the applicant took the husband to paragraph 13(b) of his 2014 affidavit which was in the following terms:
…. the pool was in the process of completion when she began to rent downstairs and the only thing to finish was the tiling – which was my own trade at the time and was for over 30 years.
The husband agreed that he had not done the tiling on the pool. This paragraph is clearly misleading. The husband argued that he meant that the wife had no idea what tiling needed to be done on the pool and due to his experience, he had the ability to facilitate that. When asked by counsel for the applicant whether he had ever had conversations with the wife from time to time about the completion of the pool, the husband denied that that was the case, stating that the pool had already been constructed and done before the wife commenced residing at the Suburb E property.
Following separation, the wife did not retain any asset from the Suburb E property. The husband retained his 50 per cent interest in the Suburb E property, subject to a mortgage of $58,000 and household furniture and contents.
The husband received an insurance payout of $9,550 from BB Group due to damaged floors.
The parties’ child lived with and was cared for by the wife from February 2013 to October 2015.

The wife’s Kennon claim

Counsel for the applicant sought that the Court make a finding that, in assessing the respective contributions of the parties pursuant to s 90SM of the Act, the wife’s contributions were made significantly more arduous as a result of the family violence perpetrated by the husband (Kennon & Kennon (1997) FLC 92-757).
The wife fulfilled the role of homemaker from 2002 and as parent from 2010. The wife’s contributions as homemaker and parent whilst the parties were together concluded at the date of separation, namely May 2011, according to the husband and December 2011, according to the wife.
The husband denies all allegations of violence.
Notwithstanding that the wife has not given evidence in the case, there is a volume of agreed facts and objective evidence which point to a systemic pattern of family violence in which the wife was the victim and the husband was the perpetrator.
The applicant gave evidence that during the wife’s relationship with the husband she “often observed physical injuries on the [wife]” (see paragraph 56 of the applicant’s trial affidavit). The applicant gave evidence that the wife had told her of incidences where the husband had slapped her across the face, punched her and referred to her in derogatory terms. Given that these statements were made by the wife contemporaneously with the applicant observing physical injury, I put some weight upon them.
At paragraph 69(r) of the applicant’s trial affidavit, she records that in about 2005 the wife had miscarried a child at about 24 weeks and that the wife had told her a number of years later that it was because of the abuse perpetrated by the husband. As indicated, I can put little weight on statements made by the wife absent other objective evidence.
A COPS report dated 10 August 2004 (annexed to the applicant’s trial affidavit, page 175) records an oral argument between the wife and the husband which resulted in the police being called. Whilst the COPS report records the wife saying that “she did not fear for her safety and that she had not been assaulted” the police record that they were of the opinion that the wife would “benefit from talking to counsellors about the incident” and referred the wife to a Domestic Violence follow up service.
A COPS report dated 3 October 2004 (annexed to the applicant’s trial affidavit, page 179) describes the police attendance on the Suburb E property in the evening of 2 October 2004. The report contains the following extracts:
Upon arrival police knocked on the door. Police have heard a male and a female yelling inside. A short time a child over the age of 16 opened the door and invited police into the premises...
The [husband] was extremely hostile towards police and started intimidating the [wife]… The [husband] was asked by police to go outside to obtain a version. The [husband] has then become irate and was escorted out of the premises…
During this other police who had also attended the scene walked into the kitchen area and saw the [wife] in the corner in a foetul [sic] position. The [wife] appeared to be crying and appeared to be in a shocked state and was shaking profusely.
The [wife] walked towards police and sat down on a seat that was located in the middle of the kitchen and the dining room. As the [wife] was walking police noticed that she was limping and she was holding her arm across her stomach. The [wife]’s wrist appeared to be broken. Police asked the [wife] if she would like the ambulance to attended [sic] however declined. The [wife] informed police that she was ok and her wrist was not broken.
The [wife] informed police that she was having an argument with her partner, the [husband]. The [wife] said “We were arguing about a text message that he took the wrong way, he thought I was cheating on him”.
The [wife] also informed police that she left the location as she was aware that the [husband] was agitated and that the situation was going to escalate.
The [wife] ran from the location with her son [Mr F]. The [wife] started walking to Suburb E Train Station. The [husband] followed the [wife] and was asking her to return home and he would leave for the night. The [wife] and the [husband] returned to the premises. Once inside the [husband] has pushed the [wife] in the shoulder and pulled her hair.
Police noticed that the [wife] had red marks on her legs from below the knee. The [wife] also complained of a sore wrist.
A short time later the [2^nd respondent] attended the location and said to the [wife], “Don’t give them a statement, don’t tell them anything you don’t have to”. After the [2^nd respondent] said this to the [wife] she started to change her version. The [wife] seemed withdrawn and informed police that her injuries were sustained from her falling onto cement prior to returning home with [the husband].
Police spoke to the children that were at the location to check on their welfare. While speaking to the children, [Mr F] stated that he didn’t see his mother fall and that he saw [the husband] hit his mother a number of times.
The [husband] was arrested, cautioned and conveyed…
The applicant gave evidence that the police made an application for an ADVO on the wife’s behalf, however, the wife was too terrified to pursue it. Neither the husband nor the 2^nd respondent were cross examined about this incident.
A COPS report dated 30 July 2010 (annexed to the applicant’s trial affidavit, page 183) details the wife’s report of the husband’s behaviour when she, Mr F and X were at her friend’s home. The wife reports that her intention was to travel to Town C to stay with her parents as she did not want to stay with the husband. According to the report, the husband had come, banged on the front door and shouted, attempting to gain entrance, and when he was not allowed into the premises, he went and let out the air in the wife’s tyres. An AVO was granted, however, the report records that numerous attempts to serve the AVO on the husband were unsuccessful and that the wife sought the AVO to be withdrawn.
In cross examination, the husband agreed that he had let the air out of the tyres in the car stating that he had done so because the wife wanted to drive down to Town C inebriated and that this was to prevent her doing so. The husband commented that at the time the wife was “sick”. I do not accept the husband’s version of events as it is unlikely that the wife would have brought the matter to the attention of the police if she had been inebriated.
A COPS report dated 14 November 2010 (annexed to the applicant’s trial affidavit, page 189) details an argument that the wife and husband had regarding whether the wife could take the child, X (who was 7 months old at the time) with her to her mother’s home. The wife’s son, Mr F (who was 14) had returned home from work to find the parties consuming alcohol. The report describes that the parties were fighting and the wife then asked Mr F to pick up X who was sleeping in the bedroom. The report then describes:
[Mr F] did as his mother asked and walked to the front bedroom of the house where X was sleeping…
…
[Mr F] exited the front bedroom with X in his arms and stood next to his mother just outside the bedroom door. The accused approached [the wife and Mr F] and again yelled at [the wife] telling her that X was not going anywhere. At this point, [the wife] replied saying “Fuck you [the husband’s surname]”.
The [husband] became angry at the manner in which he had been spoken to. He raised is [sic] right hand pushed the [wife] in the face with his open palm causing the [wife’s] head to tilt back and her top lip to roll upward. The [husband] then yelled at the [Mr F] saying words to the effect of “Give me my kid, he’s not going anywhere, let go of him”. The accused then attempted to take X from the arms of [Mr F].
The [husband] squeezed his right arm between the chest of [Mr F] and the front of X’s body and took hold of X around his waist. [Mr F] held on tight to X and used his both arms which he had wrapped around X’s small body to pull him in closer. The [husband] continued to pull at X using his right arm which he had inserted between the bodies of [Mr F] and X at a downward angle, leaving his elbow near [Mr F]’s head.
[Mr F] refused to let go of the child as the accused continued to attempt to pull the child from his arms. At this point the accused used his right elbow to strike [Mr F] on the left side of his face, making contact with the jaw area. The [husband] managed to take hold of the child and [Mr F] released his grip allowing the accused to walk away…
The husband agreed that whilst he had pushed the wife in the face, he had done so because the wife was drunk and attacking him. He agreed he had yelled at Mr F to “give me the kid” but denied ever striking him on the jaw.
As a result of this incident, the husband was arrested and charged. The husband agreed that this lead to two charges of assault and that he appeared at the Local Court and was issued with an AVO for 12 months and fined $750. The husband couldn’t recall whether he was charged or had pleaded guilty. The police recorded that they held fears that the husband “showed no signs of remorse and believed his actions were not unlawful” and that they “fear the children may become exposed to physical domestic violence”.
A COPS report dated 2 May 2011 (annexed to the applicant’s trial affidavit, page 195) records that the husband had been charged with assault, breach of AVO and breach of bail conditions perpetrated on the wife and Mr F. The report records that a final AVO had been made on 28 January 2011 at the Local Court for the protection of the wife in the absence of the husband. The husband was denied bail.
The report then describes an argument between the wife and the husband which resulted in the following:
After they had been arguing for some time, the [wife] and Mr F left the house and went to sit on some stairs at the side of the house.
The [husband] followed the [wife] out of the house and said to her, “[The wife], if you make one wrong move now you’re going to go missing. Do you understand?” The [husband] walked up behind the [wife] and grabbed her hair with one hand, pulling her head backwards. The [wife] felt immediate pain and discomfort. She ran inside the house as she was fearful of being further assaulted by the [husband]. Mr F ran inside the house with the [wife]. The [wife] called the police.
Whilst the husband agreed that he got into a heated argument with the wife, he denied that he had ever threatened her that she would “go missing”. In a letter from the husband in gaol dated 4 May 2011, he wrote:
I did grab [the wife]’s hair… I didn’t hit her nor kick or bruise her. But I felt so angry and disillusioned by her actions all day. I reacted but it was after 10-12 beers, Panadiene forte, I never act like that when I’m normal.
In cross examination, the husband said that he had pulled her hair, but this was in an attempt to calm the wife down. The husband agreed that he did feel angry and he had reacted and that that this was an occasion which he was effected by drugs and alcohol.
After he was arrested, the husband was remanded in custody for five weeks and on 9 June 2011, the husband was convicted of assault and breach of ADVO. The ADVO conditions were varied to restrain the husband from approaching the wife and the husband received a s 9 bond of 12 months supervision by the NSW Probation Service.
On 10 June 2011, the husband was released from gaol and notwithstanding the ADVO, returned to the Suburb E property. The husband denied that the wife was still living there at the time, stating that she was given a 48 hour window by the Court to leave the property. It was unclear by whom and on what basis the husband asserts the wife was excluded from the property.
The applicant says that the husband and wife reconciled upon the husband’s release.
A COPS report dated 29 August 2011 (annexed to the applicant’s trial affidavit, page 211) details a fight between the wife and the husband, where the wife was alleging that the husband was having an extramarital affair. The report records the following information, which I infer was provided by the wife and Mr F:
… the [husband] was angry and screamed for the [wife] to shut up, he then used his right hand to punch the [wife] to the left side of her mouth. The impact caused one of the [wife]’s top teeth to be knocked out and her mouth to fill with blood.
The [wife] fell to the floor and began to scream, immediately the [husband] tried to calm the [wife] stating the neighbours would hear. The [wife] got off the floor and sat on the couch in the living room where her son, Mr F brought her some ice from the kitchen which she put on her face. Eventually the bleeding stopped and the [wife] went to bed.
The following day, the wife and husband continued to argue, and the report describes the husband becoming angry at the wife’s allegations of infidelity and then that he “walked over to the [wife] and grabbed either side of her head using both hands and took hold of her hair. The [husband] then pulled the [wife] from the couch and she fell to the floor before the [husband] sat down on top of her and began to punch her to the head and body.”
The report further records that a number of days later the wife attended her local doctor and disclosed that she had been a victim of domestic abuse. The doctor called the police and Mr F and wife gave statements which results in the husband being charged.
Annexed to the applicant’s trial affidavit at page 207 is the doctor’s report dated 29 August 2011, which included the following observations of physical injury:
[The husband] got out of jail 10 June 2011.
….
She was convinced to move back and did about 29 June 2011 moved back. 1^st day back attitude changed. [The husband] got on to “…” internet talking to other girl/s with her.
repeatedly assaulted last four days
r upper lat incisor (oe looks new inj) knocked out.
bruising on arms legs consisted with assaoult
finger print brusing on L forearm, upper arm.
large bruise over R trapezius, R poplitial fossa.
(As per original)
The applicant gave evidence that in March 2012, the applicant’s husband paid $5,500 towards the costs of the replacement of the wife’s front tooth.
The husband denied ever punching the wife. It is the husband’s contention that the wife was so hysterical that she had knocked her own tooth out and caused the bruises on her arms and legs to herself. In respect of the finger print bruising, the husband said that this was likely him trying to defend himself. The husband conceded that his statement at paragraph 68 of his trial affidavit that there was no police report of the incident was not correct. The husband said that the wife made the police report days after the incident occurred because she was worried that the husband was going to put her into a mental institution.
The husband was charged with assault causing actual bodily harm, common assault (DV) and contravening an ADVO. Bail was refused. The husband was found guilty to common assault. The husband said he made no comment during the hearing and “took the wrap” for the wife. In October 2011, the husband was convicted and received an 8 month suspended prison sentence with supervision of NSW Probation Service. The ADVO was extended to 28 January 2013.
I am unable to accept the husband’s evidence. I rely upon the finding of guilt made by the Local Court. The husband’s evidence that the wife knocked her own tooth out and self-inflicted the bruise observed by the doctor is inherently improbable.
Upon his release, the applicant gave evidence that the parties recommenced their relationship.
A COPS report dated 23 December 2011 (annexed to the applicant’s trial affidavit, page 218) notes that the husband is currently on bail for a previous incident involving the wife. The report records that the wife had left the house and was walking down the street when she noticed the husband driving along after her. The report then describes:
The [husband] parked his vehicle on the opposite side of the road, the [husband] exited the driver’s side door. [The wife] yelled at the [husband], “Leave me alone”. The [husband] replied, “Don’t go, your going to get into serious trouble. You’re in danger”.
The [husband] using both arms approached [the wife] and grabbed her around her shoulder/chest area. At the time [the wife] was worried that she was going to be forcibly taken to the [husband]’s home where they live.
The [husband] took hold of the [wife]’s shirt and bra pulling it towards causing the bra to break. Soon after the [husband] put out his leg and attempted to trip [the wife]. The [husband] forced the [wife] backwards resulting in her being pinned to a shop window.
About this time Victim 2 approached the [husband] as he had feared that [the wife] was in danger. Victim 2 yelled at the [husband] “Let her go. Let her go.” Victim 2 using his left hand took hold of the [husband’s] left forearm in an attempt to free [the wife] from the [husband]. The [husband] replied to Victim 2 “Fuck off”. Victim 2 again requested the [husband] let go of the [wife].
Victim 2 raised his right fist towards the [husband] who was still struggling with [the wife], in an attempt to stop the [husband] from having hold of [the wife]. The witness approached the [husband] and requested that he let go [the wife].
The witness took hold of the [husband’s] right arm and pushed it behind his back. At the time the [husband] still hand hold of [the wife] with his left hand. The witness pulled the [husband] away from [the wife] resulting in the [husband’s] grip releasing. After being freed [the wife] attempted to get into a near by vehicle. Both the witness and Victim 2 have suggested she make her way to the nearby train station.
Whilst the balance of the next part of the report is redacted, it does record that the matter was now before the court. The applicant gave evidence at paragraph 81 of her trial affidavit that after this incident, she believes the husband was charged with breaching his ADVO and bail conditions. The husband was not asked any questions about this incident.
I accept what is recorded in this COPS entry as it, on its face at least in part, relies upon information provided by two other bystanders who became involved in the event.
A report by Dr CC dated 3 December 2003 (annexed to the applicant’s trial affidavit at page 160) records that the wife is suffering from an “Adjustment Disorder with Depressed Mood secondary to her domestic situation”. The report also states that the wife has describes the husband as “being physically and verbally abusive towards herself”.

As mentioned above, counsel for the applicant also took the Court to a report by the wife’s social worker, dated 6 November 2013, which stated that the wife had self-referred to the Domestic Violence and Community Counselling services on 9 January 2012 (on the wife’s case, approximately two weeks post separation). Contained in that report are allegations that the husband ripped the wife’s hair out, handcuffed her to the bed, whipped her with a dog leash and told her that she deserved to be chopped up into little pieces and dumped in the river. The husband denied all these allegations. I am unable to place weight on those allegations. However, it is significant that, in the context of the violence which I have found has been established, the report also detailed that in the duration of the wife attending the counselling services (almost 22 months) she had been “experiencing difficulty coping with [the husband’s] ongoing behaviour.”
In 2016, the wife was diagnosed with major depressive disorder and PTSD by her psychiatrist. The applicant gave evidence that the wife “continued to suffer from depression, low moods, tearfulness and feeling overwhelmed. She also suffers from intrusive memories, flashbacks and everyday things would sometimes trigger her.” She is currently living in housing commission, is in receipt of government benefits and is unable to work.
The wife, due to her mental health, was not able to participate in the proceedings. Counsel for the respondents submitted that the applicant has not produced sufficient evidence for the Court to establish that any alleged family violence perpetrated by the husband made the wife’s contributions significantly more arduous. Counsel for the applicant argued that the Court may infer that the wife’s contributions, particularly those she made as a homemaker and parent, were made “more onerous” (Maine & Maine [2016] FamCAFC 270; Britt & Britt (2017) 56 Fam LR 526). I accept counsel for the applicant’s submission.
I conclude that the contributions of the wife in the role of homemaker and parent during the cohabitation were made significantly more arduous by the family violence perpetrated by the husband upon her and that her contributions as a role of parent after separation, given the wife’s PTSD, were made significantly more arduous, notwithstanding, the fact that the physical violence had ceased.

Conclusion in respect of contributions

The parties were together for 9 years. The child, X, was born about 21 months before the end of the relationship.
The husband was not in paid employment during the cohabitation. The wife worked in paid employment in a period that was no less than six months and no more than four years.
I find that the wife contributed the majority of her income and child support payments to the benefit of the family including the payment of living expenses.
At the commencement of the relationship, the husband owned one half share of the property at Suburb E subject to a small mortgage (at the time of the commencement of cohabitation, his half share of the mortgage was about $11,000).
I am prepared to infer that both the wife and the husband made contributions in the role of homemaker over the period of the cohabitation. The wife ceased working around the time of the child’s birth and I am prepared to accept that she was his primary caregiver until the separation, although the husband did assist.
Both the husband and wife respectively struggled with issues relating to their mental health. The relationship was also blighted by serious drug taking by both parties and systemic family violence perpetrated by the husband against the wife.
The husband was absent from the household during two periods of incarceration in 2011 (associated with the husband’s family violence against the wife) and the wife looked after the child in those periods.
Following separation, the wife, having initially had the child removed from her care by child welfare authorities immediately after separation, cared for the child between February 2013 and October 2015 until the wife suffered a psychotic breakdown and was diagnosed with a major depressive disorder.
Since separation, the husband has enjoyed the occupancy of the Suburb E property.
The wife has been supported by an income tested pension and the husband has not paid child support of any significance since separation.
As I found above, relevant contributions made by the wife were made significantly more arduous as a result of the family violence perpetrated upon her by the husband.
I assess the parties’ contributions to the net asset pool as to 27.5 per cent to the wife and 72.5 per cent to the husband.

Section 90SM(4)(d)-(g) considerations

The wife is 43 years of age. As mentioned above, the wife has been diagnosed with major depressive disorder and PTSD and is unable to work. She is currently living in housing commission and is in receipt of government benefits.
The husband is 56 years of age. The husband has not worked as a tradesman for many years. The husband gave evidence that around 2015/2017 he was diagnosed with delusional disorder which prevents him from working a tradesman.
The husband is currently in receipt of a disability pension. He lives with his current partner at the Suburb E property and records in his Financial Statement that a carer’s allowance is received by his current partner in the sum of $70 per week.
I take into account the proportion of the net assets which each party shall hold based upon the findings as to contributions. The net assets in this matter are very modest.
The husband’s only interest in property is the equity in the Suburb E property. The husband’s Financial Statement records that he has total debts of $665,000 as a result of debts owed to T Lawyers, his mother, his son and unpaid council fees and rates. The husband has no superannuation.
I am unable to say what assistance Mr V might provide in helping to facilitate a refinance that would save the Suburb E property.
The wife receives Government benefits and rent assistance in the sum of $600 per week. She pays rent of $240 per week. Her Financial Statement filed on 8 May 2014, indicated that at that time, she had $2,500 in the bank, a motor vehicle of $2,000 and household contents in the sum of $5,000. She has no superannuation and no liabilities.
Counsel for the applicant argued that an adjustment should be made in the applicant’s favour due to the applicant, namely the wife’s mother, currently providing care for the nine year old child of the parties’ relationship (Aleksovski v Alekovski (1996) FLC 92-705). Considering the circumstances in which the child went into the applicant’s care, including the care proceedings before the Children’s Court and that the applicant consented for an order in her favour for the care of the child, I agree with counsel for the respondents’ submission that neither party should receive an adjustment in respect of the care.
Mr F was around six years old at the commencement of the cohabitation and was a member of the household of the wife and the respondents throughout the cohabitation. His father, however, paid regular child support and I give little weight to support provided to him by the husband.

Conclusion in respect of s 90SM(4)(d)-(g) considerations

I find that there should be a further 12.5 per cent adjustment in the favour of the wife.

Just and equitable order

The result of the findings in respect of contributions and s 90SM(4)(d)-(g) considerations, would lead to the wife receiving 40 per cent of the net assets or a sum of $168,000. Standing back, I consider that to be an appropriate and just and equitable outcome.
A payment of that amount should be made by the husband to the applicant on behalf of the wife within a period of two months. If it is not, then an order will be made for a default sale of the Suburb E property.

I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 January 2020

Associate:

Date: 31.1.2020

SCHEDULE 1

The applicant relied upon the following documents:

a)Affidavit of the wife filed 8 May 2014;
b)Financial Statement of the wife filed 8 May 2014;
c)Affidavit of the wife filed 20 June 2017; and
d)Affidavit of the applicant filed 5 August 2019 including an exhibit bundle (“the applicant’s trial affidavit”).

SCHEDULE 2

The respondents relied upon the following documents:

a)Affidavit of the husband filed 25 July 2014;
b)Affidavit of the 2^nd respondent filed 25 July 2014;
c)Affidavit of the 2^nd respondent filed 13 September 2019;
d)Affidavit of the husband filed 13 September 2019 including an exhibit bundle;
e)Affidavit of Mr V Siddall filed 19 September 2019; and
f)Financial Statement of the husband filed 22 October 2019.

[2020] FamCA 40

31 January 2020

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Appeal

Costs

Damages

Injunction

Remedies

Standing