Newbold and Chadwick
[2018] FCCA 273
•14 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWBOLD & CHADWICK | [2018] FCCA 273 |
| Catchwords: FAMILY LAW – Property settlement – wife’s unilateral removal and personal use of joint funds following separation – discussion of “add-backs” – whether use of monies “reasonable or necessary” – “Kennon” principle – whether family violence proven – spousal maintenance. |
| Legislation: Family Law Act 1975 (Cth), ss.75, (2)(o), 79,(2), (4) Evidence Act 1996 (Cth), s.140(2) |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 Russell v Russell (1976) 134 CLR 495 Watson v Ling [2013] FamCA 57 |
| Applicant: | MS NEWBOLD |
| Respondent: | MR CHADWICK |
| File Number: | HBC 166 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 6, 7 & 8 November 2017 |
| Date of Last Submission: | 8 November 2017 |
| Delivered at: | Burnie |
| Delivered on: | 14 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Trezise |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| Counsel for the Respondent: | Ms K Mooney |
| Solicitors for the Respondent: | Waterson Legal |
ORDERS
That from the monies held on behalf of the parties by Pepperells Solicitors, agreed at $138,542, the husband be paid the sum of $85,602 and the wife be paid the sum of $52,940 and any interest accrued on the agreed sum be distributed in accordance with the findings of this Court generally as to the alteration of the property interests of the parties.
That in all other respects each of the parties be solely entitled to the exclusion of the other to all property in that party’s procession or control as at the date of these orders including but not limited to personalty and chattels, motor vehicles, balances of bank accounts and superannuation or pension entitlements.
That each party be solely responsible for and indemnify the other in respect of the following liabilities:
(a)any and all liabilities attaching to any of the assets to be retained by that party pursuant to these orders.
(b)any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone;
(c)that the husband be solely responsible for the (omitted) Credit Card liability.
That the wife’s application for spousal maintenance be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Newbold & Chadwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 166 of 2014
| MS NEWBOLD |
Applicant
And
| MR CHADWICK |
Respondent
REASONS FOR JUDGMENT
Applications
The wife is the applicant. She seeks the following orders:
(1) The net assets of the parties, as ascertained by the Court, will be adjusted between them on the basis of a 70/30 division in the wife's favour.
(2) The husband will pay to the wife the sum of $450 per week by way of spouse maintenance (or such other sum as the Court considers appropriate), to be paid on a fortnightly basis into a bank account nominated by the wife.
The husband, by the time of final addresses, proposed a property settlement, on his version of the pool, whereby he retained 48.9% of the property and the wife to retain 51.1%. The husband argues for the wife's application for spousal maintenance to be dismissed.
The Issues
There is a major issue between the parties as to the property pool to be considered by the Court. Specifically, it is conceded that the wife unilaterally removed a sum of $223,064 (after payment of a joint (country omitted) credit card liability of $11,811) from joint funds between September 2014 and June 2015. The wife says that these monies have been used for her reasonable and necessary living expenses in the subsequent 3 years. The husband says that those monies should be “added back” to be pool for consideration by the Court or, alternatively, considered under s.75(2)(o) of the Family Law Act 1975 (“the Act”).
There is a fundamental issue of credit and disputed fact between the parties relevant to the significance to be attached to the monies withdrawn by the wife. Ms Newbold says that she suffers Post-Traumatic Stress Disorder (PTSD) as a result of family violence perpetrated on her by the husband during the marriage. She argues that she is unable to work remuneratively. She says that she has been unable to work since 2013. The wife's assertions are accordingly directly and fundamentally relevant to her case as follows:
i)That she has reasonably utilised the sum of $223,064 removed by her from joint funds for her financial support until now;
ii)That she requires spousal maintenance to be paid by the husband because she remains incapacitated for work and that the above-mentioned monies removed from joint funds have now been fully expended;
iii)That she should receive a loading/adjustment in her favour under the ‘Kennon principle' by reason of the husband's conduct perpetrated against her during the marriage such that impacted on her contributions during the marriage; and
iv)The wife also seeks an adjustment in her favour of 10-15% on consideration of the relative factors under s.75(2) of the Act with emphasis on the disparity in earning capacities of the parties and again with reference to the wife's asserted incapacity for employment.
The husband denies the allegations of family violence. He argues that the wife has capacity for ongoing employment. He says that she has skills and experience. He says that she has been able to work productively and remuneratively in the period since separation but has chosen not to and unnecessary used the monies removed by her.
There is now essentially agreement between the parties as to the content of the property pool for consideration although, of course, significant differences between them as to how the Court should consider various elements of that pool and, in particular, the amount of $223,064.
Relevant Law
Matters of property adjustment are provided for in s.79 of the Act.
Section 79(2) provides that the Court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The High Court in Stanford & Stanford[1] confirmed that trial Courts are to make this determination independently of and not conflated with the contribution considerations in s.79(4). In the matter now before me, the parties’ marriage is at an end. They retain significant assets in the form of deposits in joint names. I am easily persuaded, therefore, that it is just and equitable to alter their property interests on a full and final basis.
[1] (2012) 247 CLR 108
The Court is tasked with establishing and attributing value to the property pool. Property includes the assets, liabilities and financial resources of the parties and each of them. It is generally prudent and proper to ascertain the property pool as at the date of the trial, although considerations of post-separation contribution to assets are proper. Superannuation entitlements are normally 'treated' as property, although complicated in the matter now before me given that a number of the superannuation pension policies emanate from the parties’ employment in the (country omitted) and therefore more properly seen as financial resources.
The Court is then to consider the various contributions of the parties to the acquisition, conservation or improvement of any of the property. Contributions may be of a direct or indirect financial kind. Contributions may be of a non-financial type including as homemaker or parent.
After considering the contributions, the Court will then determine whether any further adjustment between them is just and equitable on consideration of the relevant factors set out in s.75(2) of the Act.
Underpinning this process is one of justice and equity permeating the entire consideration including that the Court then finally 'stand back' and consider whether the actual proposed orders do justice and equity between the parties.[2]
[2] Russell v Russell (1976) 134 CLR 495
Credit
The underlying theme and fundamental basis of the wife's case is her assertion that she is a victim of family violence. Those allegations are denied by the husband.
This Court is not oblivious of the nature of family violence and its various forms. The problem is often a hidden one which occurs behind closed doors. Corroboration is understandably difficult and especially where the violence is not of a direct physical type. It remains, however, the task for Courts to make findings of disputed fact and credit to the requisite standard of proof.[3] It follows, therefore, that a party making an assertion of fact or an allegation carries an onus to prove that fact on the balance of probabilities noting a level of confidence in the Court to be reasonably satisfied as to the veracity of the assertion. Importantly, and whilst an allegation of family violence may be difficult to corroborate, such an allegation is similarly difficult to refute or corroborate its denial. However, the onus sits with the applicant and it should never be the case that a respondent to an allegation of any type be required to 'prove his/her innocence.'
[3] Evidence Act 1996 (Cth), s.140
Section 140 of the Evidence Act 1996 provides:
1.In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
2.Without limiting the matters of the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject matter of the proceeding;
(c) the gravity of the matters alleged.
Within the context of s.140(2), the wife here makes serious allegations against the husband such that lay at the very foundation of her various arguments. I consider these allegations to be grave and serious and the wife's onus sits accordingly in the terms of s.140 of the Evidence Act 1996.
Nevertheless, and despite these obvious difficulties in making findings based on credit, I have the advantages afforded trial judges and noted by my colleague Judge Wilson in Goodridge & Beadle[4] as follows:
[4] [2017] FCCA 3219 at [97]
At the outset let me state that as the trial judge in this case I enjoyed all the advantages that a trial judge enjoys, as Kirby ACJ pointed out in Galea v Galea (“Galea”).[5] There, his Honour held that those advantages include the trial judge –
[5] (1990) 19 NSWLR 263
(a) hearing the evidence in its entirety;
(b)hearing and seeing all evidence in context, chronologically and logically advanced;
(c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
(d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
(e)observing body language, sometimes important for interpreting communication.
I also have the assistance in my considerations of the principle in Jones v Dunkel[6] where the unexplained failure by a party to put evidence before the Court, whether by witness or document, may lead to an inference in the Court that such evidence would not have assisted that party’s case. Again, where determination here is primarily based on findings of credit, such a principle may assume some importance in corroboration or in rebuttal.
[6] (1959) 101 CLR 298 at [320]
Add-Backs
The major issue for the Court here is how it deals with the net amount of $223,064 unilaterally removed from by the wife from a joint account and since disbursed.
Historically, it has been understood that Courts in determining the content of a property pool for consideration have exercised a discretion, in appropriate circumstances, notionally to add back into the pool funds that no longer exist. The Full Court in AJO & GRO[7] noted three categories where an add-back might be proper being:
i)where a party has expended joint monies on personal legal fees;
ii)where there has been a premature distribution of matrimonial assets;[8] or
iii)where one party has by a course of conduct reduced the value of an asset or where that party has acted recklessly, negligently or wantonly in reducing the value of an asset or the property pool.[9]
[7] (2005) FLC 93-218 at p.79617
[8] Townsend & Townsend (1995) FLC 92-569
[9] Kowaliw & Kowaliw (1981) FLC 91-092
Whilst historically there seems to have been a discretion in trial Courts to make notional add-backs, the discretion was exercised cautiously. In C & C[10] the Full Court observed:
In a case involving the magnitude of the assets in this case, in our view, it is unreasonable to conduct a microscopic examination of each of the parties’ items of post separation expenditure with a view to determining whether or not it is appropriate that they be brought into account in dividing up the asset pool between them. The cases which deal with notional add-backs are generally examples of circumstances in which it would be clearly unjust and inequitable not to take those matters into account. (See Kowaliw (1981) 7 Fam LR 13; [1981] FLC 91-092, esp at FLC 76,645; Townsend (1994) 18 Fam LR 505; [1995] FLC 92-569; Farnell (1995) 20 Fam LR 513 (expenditure on legal costs notionally added back because of s117).
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Providing modest support for their adult children or taking not inappropriate holidays for themselves seems to fit comfortably within that description.
[10] C &C [1998] FamCA 143
The decision of the High Court in Stanford & Stanford (supra) appears to have been a critical reminder for Courts to be more cautious about adding back property which no longer exists.
Followings Stanford (supra) the Full Court of the Family Court in Bevan & Bevan[11] considered the notion of add-backs. Bryant CJ and Thackray J stated at [79]:
We observe that 'notional property', which is sometimes 'added back' to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute 'property of the parties to the marriage or either of them’ and thus is not amenable to alteration under s.79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s.79(4) and in particular s.75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[11] (2013) FLC 93-545
In a separate judgment Finn J observed at [160]:
There remains that the jurisdiction in s.79 is a jurisdiction to alter individual interests entitled to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence, but which one party has had the use of (the so-called 'add- backs'), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings un s.79(4)(e)(i.e.75 (2)) or in an extreme case, when considering the question un s.79(2) as to whether it is just and equitable to make any or un s.79. These questions do not arise in the present case, and are thus for another day.
In Watson v Ling[12] Murphy J comprehensively considered the issue of notional add-backs and it is proper in context that I cite fully and in detail from his Honour’s learned judgment as follows:
[29] Where, but for the disposal of money or other property by one party, legal or equitable interests in it would have been part of those existing at trial, it may be possible to assert, in the particular circumstances of a case, that the money or property is nevertheless to be considered as part of the existing legal or equitable interests of the disposing party (sham transactions and circumstances where it can be established that the property is held, for example, on trust by another for the disposing party are examples). The investigation of issues of that type might be seen to be part of the establishment of the existing legal and equitable interests at trial – a task which the majority of the High Court in Stanford (at [37]) said should be the first step in considering, pursuant to s79(2)…whether it is just and equitable to make an order.
[30]In many other cases, for example those which come within the convenient rubrics of “waste” (see Kowaliw & Kowaliw (1981) FLC 91-092) or “premature distribution” (see, for example, Townsend), legal and equitable title to the money or property will have passed. It could not be said that the money or property is part of the “existing legal or equitable interests” of a party or the parties. The notion that such money or property should be treated as a “notional asset” or “notional property” appears to run contrary to the thrust of the decision in Stanford: at issue is the consideration of two separate questions, the first of which is whether existing legal or equitable interests should be altered.
[12] [2013] FamCA 57
…
[32]Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have been significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
[33]How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example, AJO & GRO (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and C & C). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
[34]The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, C & C at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (C & C at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, Chorn & Hopkins [2004] FLC 93-204) will require further consideration in an appropriate case.
[35]Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.
In summary, therefore it has been the position of the Courts both pre and post Stanford, that it is not normally appropriate to notionally and simply add-back monies on a dollar-for-dollar basis that existed at separation and which have subsequently been spent by one or other of the parties on meeting reasonably incurred necessary living expenses. This is a primary and rudimentary issue in the matter now before me. Whether any expenditure so incurred is reasonable or extravagant is a matter to be determined on the evidence by the trial Judge.[13] It seems to me that should the Court find that the expenditure of the monies was not reasonable or necessary then a discretion remains in the Court as to whether such funds be notionally 'added-back' or dealt with under s.75(2)(o) of the Act where logic suggests that justice and equity would demand are a similar final result after consideration of contributions and relevant s.75(2) factors. Noting, however, that caution remains for Courts as noted by Murphy J in Bateman & Bowe[14] where his Honour suggested that add-backs remain 'the exception rather than the rule' and that existing legal and equitable interests in property should be valued at the date of the trial save in 'exceptional circumstances'. Still, a discretion for the trial judge remains as apparently confirmed by the Full Court in Vass & Vass[15] where their Honours at [138] found as follows in respect of a trial judge 'adding back' an amount of $25,000 that was unilaterally withdrawn by the husband from a joint bank account post separation:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93 – 545; 247 CLR 108 is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to 'notional property' as have been referred to in decisions of this Court and at first instance may need to be reconsidered.
[13] M & M [1998] FamCA 42
[14] [2013] FamCA 253
[15] [2015] FamCA 51
Finally, I am, comfortable with the discretion remaining in the trial judge as noted by a still later Full Court in Talbot & Talbot[16] where the Court said at [31]:
Where one party unilaterally distributes to themselves property which no longer exists and which, but for that premature distribution, would be susceptible to s.79 orders, justice and equity may require the Court to take account of the dissipated property by adding it back as against the dissipating party (Townsend & Townsend [1994] FamCA 144; (1995 FLC 92 – 569). Whether that should occur or whether the dissipation should be taken into account pursuant to s.75 (2)(o), or indeed at all, are all matters requiring the exercise of the trial judge’s discretion…
[16] (2015) FLC 93-660
Background Facts
The wife is 50 years of age and the husband is 49 years old. Both were born in (country omitted).
The parties commenced cohabitation in 2000 and married in the (country omitted) on (omitted) 2003.
Both parties were employed in the (employer omitted) in (country omitted).
In (omitted) 2011 the husband came to Australia for employment purposes.
In (omitted) 2011 the wife joined the husband in Australia with the parties living in Melbourne. The parties obtained employment in the (omitted) industry. The wife was employed for a period in Darwin and then at a (employer omitted) at (omitted) Tasmania.
The parties separated on 13 January 2013.
The wife has re-partnered with Mr W and that relationship commenced in (omitted) 2013. They live in Tasmania.
The husband has re-partnered and he and his partner are expecting a child in about (omitted) 2018. They live in Melbourne.
In (omitted) 2012 the parties sold their home in the (country omitted) with net proceeds of (omitted)80,863.94 held in trust by Pepperells, Solicitors, and now represented in the property pool with an agreed balance of $138,542.
In 2014/2015 the wife unilaterally withdrew monies from the parties’ joint (omitted) savings account in the (country omitted) in a dollar equivalent of $234,875 but paying a joint credit card liability leaving her with a net $223,064.
The husband subsequently withdrew a sum of (omitted) 48,000 from an (country omitted) account and has retained those monies. The relevant dollar equivalent is agreed at $91,000.
In (omitted) 2013 the wife received $25,000 from the parties’ joint (omitted) bank account leaving a minimal balance in that account. She had this money with the husband’s consent.
In (omitted) 2013 the wife says that she suffered a work injury to her neck and jaw. She has not been employed since. In (omitted) 2013 she was made redundant from her employer, (employer omitted) and received a redundancy payment of $6,822.87. In (omitted) 2014 she received a net workers compensation payment of $34,000. There is no argument now by the husband that these monies or the $25,000 be ‘added back’ to the pool but remain relevant as to the wife’s financial position during the period that she claims reasonable expenditure of the $223,064.
In (omitted) 2014 the wife travelled alone to the (country omitted) on a business class airfare to visit family and collect personalty. It is during this visit that she withdrew (omitted)113,000 or part of it from the (omitted) account.
The wife's de facto partner, Mr W, is her sponsor for a residency Visa in Australia.
Mr W was also employed at (employer omitted). He has also received a redundancy having been made redundant in about (omitted) 2017. The evidence suggests that he did not work full time for some period prior to becoming redundant. Neither Mr W nor the wife receive or have applied for any Centrelink benefit. Mr W says that he has sold shares ($30,000-$40,000) and a motorbike ($3,000) to provide financial support together with some relief work in his profession as a (occupation omitted). In 2013 Mr W represented to the Department of Immigration, when putting himself forward as a sponsor for the wife, that he could support her and had an income of $84,000 per annum.
In (omitted) 2015 a shed was built on Mr W’s property at a cost of $10,000 to assist with a business/hobby of Ms Newbold (and Mr W) known as ‘(omitted),’ run through Facebook and involving the (business omitted). This activity also involved the frequent attendance at and conducting of (omitted).
The wife attended for 66 treatment sessions with a counsellor, Ms J, between (omitted) 2013 and (omitted) 2017.
Ms Newbold consulted with Mr B, registered psychologist, on two visits being (omitted) 2017 (duration 1.75 hours) and (omitted) 2017 (duration one hour). Mr B has provided an affidavit and report/assessment on Ms Newbold where he diagnoses PTSD and gives an opinion that Ms Newbold is unfit for 'casual, part-time, and full-time employment in the foreseeable future'.
The wife has previously been married and divorced. The husband was previously in a long-term relationship. There are no children of the parties or either of them noting, however, the husband and his partner are expecting a child in 2018.
The Evidence
The Applicant Wife
The wife relied on her affidavit and financial statement both sworn 23 October 2017. She was subjected to lengthy, intrusive and at times vigorous cross-examination. Generally, Ms Newbold gave evidence consistent with her affidavit.
Ms Newbold was at times argumentative and/or emotional in her responses in cross-examination. This, however, is not unusual in circumstances of a family law trial, nor inconsistent with her claim to suffer from PTSD as a victim of family violence. She was generally stoic and responsive in her evidence. Notably, however, on occasions when confronted with a question the answer to which might not prove of assistance to her case, then the wife was prone to claim memory lapse which she explained by reason of her PTSD diagnosis. Without specific medical opinion, such explanations are plausible. Similarly, some of the wife's evidence, both in affidavit and from the witness box, lacked detail and was vague and uncertain in its terms. However, I note the wife's claimed diagnosis and the difficulty in reconstructing historical detail with any accuracy as for instance in respect of her disposing of the $223,064 over some four years. Generally, therefore, I found the wife to be an assertive witness who did not retreat in cross-examination although not a witness willing to make admissions against interest. Of some concern was the discrepancy between her evidence in great detail as to issues which supported her case as against her claimed memory loss due to PTSD when confronted with questions where honest responses may not have been so helpful to her case. My observations of the wife were that she was at times prevaricating in her responses in cross-examination.
The Respondent Husband
Mr Chadwick relied on his affidavit sworn 23 October 2017 and his amended financial statement of the same date. Put simply, the husband was a most impressive witness. His responses were calm, considered and apparently informed. Significantly, he was prepared to make concessions and admissions against interest where appropriate. He was able to be complimentary of the wife where proper to do so. He steadfastly maintained his denials to the allegations of family violence. He frequently elaborated on his denials by offering a different version of the events articulated by the wife in her affidavit.
Mr W
Mr W, the wife's de facto partner, swore an affidavit on 23 October 2017. That affidavit was lacking in particularisation including as to time of various events. The affidavit is essentially silent as to material facts in respect of Mr W himself as to his own financial circumstances and his work history and prospects.
Mr W was cross-examined. I observed him to be a witness partisan to his partner’s case. He was, however, willing to volunteer what I believe to be honest and candid answers in cross-examination such as that he intended to return to his profession as a (occupation omitted) 'when this Court case is over.’ He gave evidence that he had not actively sought full-time employment due to what he saw as his responsibilities as a carer for the wife. He, nevertheless, conceded that he did not receive, and had not applied for, a carer’s benefit from Centrelink at a time when he directly or vicariously benefited from the $223,064 removed by his partner from funds held jointly by her and the husband.
Mr B
Mr B is a psychologist engaged by the wife. He swore an affidavit on 19 July 2017 annexing a copy of his report and assessment of the wife dated 26 May 2017.
Mr B was cross-examined extensively by the husband's Counsel. My observations of him were that he was reluctant to make concessions and was professionally defensive and guarded as to criticism and challenge of his methodology and conclusions.
Notably, however, Mr B’s assessment and report was not subject to professional critique and the husband did not seek to have the wife psychologically examined and assessed by his own practitioner. Nevertheless, and whilst Mr B’s evidence remains professionally unchallenged, there are issues with his evidence that give concern and impact on the weight to be afforded that evidence.
Firstly, Mr B by his own admission is not an experienced practitioner. He did not become a registered psychologist until 2016. He has not previously given evidence in any family law matters as an expert and conceded that he had given evidence once only in a Magistrates Court.
Mr B’s inexperience and perhaps naivety in respect of expert evidence in Family Courts is demonstrated by his report itself at [4] suggesting his understanding to be that he has a ‘role as an independent expert providing evidence to Court.’ This is an obvious error or misunderstanding on his part. He was engaged Ms Newbold and in no sense did he provide his report ‘independently’ or as a ‘court expert’.
Further, Mr B's assessment and diagnosis was made after just two clinical interviews with Ms Newbold. Whilst this may be sufficient for him to make a diagnosis, significantly, in my view, he did not have the benefit of any affidavits, materials, or version of history from the husband where there are consistent denials by the husband of the allegations made by the wife together with versions of historical events different to those reported to Mr B by the wife.
Still further, Mr B volunteered that his second 'clinical interview' of Ms Newbold on (omitted) 2017 was conducted in the presence of her long-term counsellor, Ms J. Whilst an explanation is given at [24], this raises concerns as to the objectivity and ‘independent assessment' carried out by Mr B without contamination by the opinions held by others. Similarly, Mr B concedes that he has had the use and benefit of Ms J's notes. Those notes were not produced with his evidence although, of course, this may have been more properly a function of the parties’ solicitors to obtain them by subpoena or otherwise. While there may be nothing professionally improper in the psychologist conducting an assessment in the presence of a client’s counsellor and utilising that counsellors notes, it raises questions as to the objective nature of the process and the dangers of pre-determination or influence especially when the alleged perpetrator is not interviewed and his affidavit not read in the process. The balance of the expert’s process is therefore questionable.
In circumstances such as this where the credit of the parties is very much at issue and hence the accuracy and assistance of experts of utmost importance, the accuracy and objectivity of the expert’s evidence and reports is crucial to the Court’s determination. Mr B confirmed the accuracy of his report at the beginning of his evidence. Interestingly, however, that report references at [5] an 'affidavit filed by Ms A (sworn 28 April 2017)’. There is no affidavit filed by a Ms A and cross-examination elicited that Ms A is perhaps the wife's solicitor. The lack of accuracy in such an important report, in my view, impacts on its reliability.
Mr B was asked in cross-examination whether he had probed Ms Newbold for other possible causes for his diagnosis of Post-Traumatic Stress Disorder. Specifically, the information apparently volunteered by Ms Newbold to Mr B in respect of trauma associated with her previous employment in the (employer omitted) was sparse. He was asked by Counsel for instance, whether he was told by Ms Newbold, consistent with her evidence to this Court, that she had seen self-harming behaviour in (employer omitted) including seeing dead bodies. He responded that he had not been told. He responded that he ‘only enquired as to the information available to me'. He did, however, agree with Counsel that these are the sorts of behaviour which could trigger PTSD. He maintained nevertheless in the witness box that family violence perpetrated on Ms Newbold by Mr Chadwick was the cause of his diagnosed PTSD.
Fundamentally, and apparently consistent with his profession in its therapeutic role, it appears that Mr B did not challenge Ms Newbold as to her version of history and events. As assessment with forensic probity, in my view, requires a higher degree of balance, objectivity and appropriate challenge. It is true that he noted consistency between reports by her to her general practitioner, Ms J and to himself. This in itself, however, does not give any degree of balance to the assessment.
Mr B was apparently unaware that Ms Newbold had suffered periods of depression prior to meeting the husband.
On consideration of his evidence, I feel unable to place any great weight on the report, diagnosis and assessment of the wife by Mr B. He was inexperienced in giving evidence and inexperienced in his profession. He thought of himself as an ‘independent expert’ but was engaged by the wife and did not have the benefit of the information to give any ‘independent’ assessment. The fact that he so actively engaged in the evidence and opinions of the general practitioner and the counsellor, Ms J, (including direct involvement with Ms J and her notes), in my view, tends to compromise the independence and objectivity of his diagnosis of Post-Traumatic Stress Disorder or, more particularly, that its root cause is family violence at the hands of the husband. My same concerns impact on the weight that I give to Mr B’s opinion as to the wife’s capacity to engage in employment and consequently, to the crucial considerations for this Court of the wife’s claims of being a victim of family violence.
Considerations and Findings
The Wife’s Assertions of Family Violence
I think it necessary to make specific findings in respect of this issue of disputed fact and credit as it lay at the crux of the wife's argument in support of the various orders she seeks and as her justification for 'reasonable and necessary expenditure' of the funds removed by her from the joint bank account. It is not perhaps an oversimplification to observe that the wife’s application almost stands and falls on her allegations of family violence on her at the hands of the husband.
There are a number of pieces of evidence which support the wife's assertions that she was a victim of consistent family violence during the marriage.
Firstly, the wife's evidence is historically consistent at least in recent times. I am comfortably satisfied that she has advised her general practitioner, Ms J, and Mr B that she has been the victim of family violence and generally with consistency.
Secondly, the wife was vigorously cross-examined in respect of these allegations. She consistently maintained her position.
Thirdly, her allegations were highly particularised and detailed in her affidavit material and contrary to the vague, unsupported and un-particularised allegations of family violence which often confront judges in affidavits filed in these Courts.
Fourthly, my observations of the wife giving evidence were not inconsistent with her being a victim of family violence. Her mood and demeanour varied quite dramatically from the assertive, argumentative and stoic to being emotional and unresponsive. Certainly, her demeanour in the witness box was not contra-indicative of her being a victim of family violence.
As mentioned above, allegations of family violence are notoriously difficult to corroborate. Contemporaneous complaint is often not made during a marriage and for understandable and plausible reasons. The nature of the violence is not always physical and hence not immediately apparent to family, friends or the public. As such, corroboration is simply not always available. Indeed the violence alleged by Ms Newbold is of the emotional, psychological and coercive types as well as the physical.
The wife has provided some corroborative evidence in the form of Mr B's report. Whilst I have reservations as to the probity of that report, it remains the only expert evidence in respect of her allegations where it was open to the husband to obtain an adverse expert report at his discretion. Mr B maintained dis diagnosis of PTSD. He remains of the view that family violence is the cause. He maintains that the wife cannot work. The husband did not adduce contrary expert evidence and sought only to challenge the wife’s expert.
Whilst all of these factors argue with various degrees of weight in support of the wife’s case, not unusually, however, in matters of credit, there are evidentiary factors which argue against a positive finding on the wife's allegations.
Firstly, there is the husband's evidence itself. He was a strong and believable witness. His denials were consistent and plausible. He impressed generally as an honest witness and one able to make admissions against interest when appropriate. Certainly, there was nothing emanating from his cross-examination that would lend support to the wife's assertions where his denials were often spontaneously accompanied by explanations or different slants on the historical particulars of the wife’s allegations suggesting a degree of embellishment or opportunism in the wife’s evidence.
Secondly, the wife's evidence is not empirically corroborated. As mentioned above, this in itself is not indicative of the wife being dishonest. There is, however, no evidence of a contemporaneous complaint by the wife. There are no reports from doctors. There is no evidence of family violence orders or similar. There is no evidence of police reports. In her affidavit at [36] the wife references her consulting a local doctor and being diagnosed with depression. The implication from that paragraph of the affidavit is that her diagnosis was as a result of the husband's behaviour and so advised to the doctor. Yet, the wife does not produce the doctor’s records or evidence from the doctor. Similarly, at [40] the wife claims that the husband's former partner, Ms C, had made statements to her consistent with the husband's violent tendencies and, in fact, of an incident of violence between the husband and Ms C and witnessed by the wife. She says the police were called and attended. The husband does not deny the event but gives a version suggesting that the wife has embellished or exaggerated her evidence. Yet, the wife does not adduce evidence from Ms C and did not bring evidence of only police reports. At [45] of her affidavit, the wife references her making contemporaneous complaint of the husband's behaviour to a friend 'Ms S’. She does not adduce evidence from Ms S. Ms Newbold references an occasion in 2005 when she was shopping with a friend, Ms B, and her own mother 'because she was trying to help mitigate the fallout from Mr Chadwick…' The wife variously references the support given to her from her family. She does not, however, adduce any evidence from the friend Ms B or any members of her family. Whilst these matters might raise consideration of the principle in Jones v Dunkel,[17] at the very least the wife does not provide corroborating evidence to her allegations such that appears to have been reasonably available to her. In an evidentiary conflict of credit and disputed fact, such corroborating evidence would potentially be invaluable when the party making the assertion carries an onus of proof.
[17] (1959) 101 CLR 258
During cross-examination the wife volunteered the statement ‘my mother knew that he could be controlling and abusive'. The wife did not adduce evidence from her mother and gave no explanation for not doing so.
The husband's affidavit annexes numerous email communications between he and the wife post-separation. Those emails span a period post-separation between 2013 and 2016. There is no evidence in those emails of complaint by the wife as to the husband's alleged historical abusive behaviour. The emails are written in an amicable and generalised fashion. They include discussions as to the parties’ divorce and property settlement. They speak of the pleasure in the continuing friendly communication between them. The wife at one time asks the husband for assistance in preparing her curriculum vitae. Certainly, the nature, content and tone of those email communications are inconsistent with the wife's advices to Mr B and her counsellor that she felt unable even to refer to the husband by name such was the impact on her of the violence said to be perpetrated by him in physical, emotional and psychological types.
The wife's affidavit is detailed and prima face disturbing in its description of the nature and impact of her husband's violence. The tenor is of the most extreme psychological and emotional violence. She complains of being isolated from friends. She complains of mental fatigue. She complains of anxiety attacks. She complains of 'barrage of verbal abuse and rhetoric'. She complains of a denial of personal privacy such as the husband insisting on watching her bathe. She complains of physical violence. The wife's evidence is of a level of violence at a high degree and consistency. Nevertheless, the chronology agreed between the parties is that the husband travelled to Australia alone some five or six months prior to the wife coming to join him. It is difficult to fathom why she would choose to follow the husband to Australia when she had obtained respite from his alleged abuse and was able to enjoy the support of her friends and family in (country omitted).
The husband also annexes at ‘C-7’ of his trial affidavit an email from the wife to her own mother dated 14 November 2011 being soon after her arrival in Australia. That email makes no mention of the husband's violence or tendency to violence of any type. Rather, the content of the email and its tone suggest a happy and optimistic relationship including the following:
I'm off to Darwin tomorrow morning for a month on a contract with (employer omitted) doing HR and Training, just up my street. Mr Chadwick’s flying back from Darwin on Thursday so we'll only SBE (sic) together for a few days, but we both decided that I should go ahead and have an experience and then we'll see what comes of it. The company is pputting (sic) me up in a hotel/apartment, fully serviced and I don't have to pay for a thing, even on a weekend. I think it's going to be hard work and long hours. I’ll miss Mr Chadwick but at least it's only a month. (‘Mr Chadwick’ is the wife’s pet-name for the husband during their marriage).
The wife's email conversations from 2013 are in no way suggestive or corroborative of her evidence of a long history of family violence. For example, an email from her to the husband of 16 October 2013 says:
Hi Mr Chadwick, well, that was a really nice conversation and long long overdue between us, I'm glad that you called me.
I only wanted to remind you to ask your mum about the heirlooms, everything else I'll take care of as discussed.
Think about the divorce options, I'm pretty sure neither of us wants to wait two years plus 6 months in the (country omitted) for a decree absolute and a financial settlement.
It was nice of you to talk to me about my visa options but in all honesty, my plans are focused on leaving Australia once redundancies are confirmed. You know I'll be fine and I know that you will go on to do greater things in (employer omitted), rent a house in (omitted), get fit again and do lots of (hobbies omitted) with Mr G.
Speak to you at the weekend. Ms Newbold
Whilst the wife goes into considerable detail in her affidavit in respect of her allegations of violence, the husband likewise gives detailed denials and responses.
The wife in her affidavit alleges a serious violent incident on New Year's Eve 2012 being shortly prior to the parties’ separation. She says that she was threatened and assaulted by the husband on the balcony of a high-rise apartment in (omitted), Melbourne. The indication she gives to Mr B is that she feared for her life. She offers no corroborative evidence although, of course, and again, it is understandably often difficult to corroborate allegations of family violence. The husband, however, does address this allegation in his affidavit. He denies the allegation of violence He produces photographs from that evening which do provide some corroboration for his version of events and his denials where he says:
We had a lovely New Year's Eve, and there was no abuse or yelling whatsoever. Ms Newbold was well-dressed as always, and I never forced her to dress in a slutty manner, or in any other manner at all, as I always appreciated her style and complemented (sic) her. Now produced and marked 'C-8’ are true copies of photos from this New Years Eve showing Ms Newbold taking photos from the balcony, and also of Ms Newbold when we went out the cinemas two days earlier.
Generally, I accept the submissions of Counsel for the husband that that there is no evidence of the wife making contemporaneous complaint in respect of her allegations of the husband's violence. I accept that no complaint is evident in the evidence before me until about 2016. I note, however, that there is evidence that the wife was receiving counselling from 2013. However, that counsellor was not called to give evidence as to any specific complaint by the wife. The counsellor’s notes were not put before me, and although they were apparently provided to Mr B, he offered no assistance as to their content in any detail.
The wife has effectively not worked for an employer after (omitted) 2013 when she suffered some physical injuries. She was assessed as to her capacity for work in (omitted) 2013. At that time there is no evidence of any lack of psychological functioning or evidence of her capacity being impacted by the symptoms of PTSD. Indeed, the wife had continued to work from (omitted) 2011 until (omitted) 2013 in Australia without any evidence of psychological incapacity. Her eventual workers compensation settlement was on account of physical injury. Further, the wife herself claimed in her employment assessment in late 2013 that she wanted to work and did not claim any psychological incapacity.
In summary, the wife makes serious assertions and allegations of consistent and grave family violence resulting in Mr B’s diagnosis of PTSD. She offers some detail of a number of particular events in her affidavit. Similarly, the husband makes consistent denials. He did not retreat from his denials in cross-examination. The wife brings no corroboration in respect of the events leading to Mr B’s diagnosis. I am reasonably satisfied from her own evidence that at least some corroboration would have been available to her. She gives no explanation for her failure to adduce that corroborative evidence. The chronology and content of the email communications between the parties post-separation are contra-indicative of the wife's self-reported demeanour to Mr B. I did not find the wife’s explanation for this anomaly to be convincing where she merely suggests that it is a symptom of the power imbalance that she should continue civil communications; not complain in emails to her mother; and follow this violent and abusive husband from (country omitted) to Australia. On balance, the husband was a more impressive witness than the wife in Court when each was challenged by Counsel as to these allegations.
Whilst Mr B’s evidence is the only expert evidence available to me in respect of the wife's mental health and it does, indeed, provide some corroboration for the wife's allegations, I did not find Mr B’s evidence to be persuasive. His forensic inexperience is apparent in what appears to be an incomplete relevant history from the wife. His lack of challenge or inquiring as to the veracity of the wife's version of history together with his use of the counsellor’s notes and involvement of the wife's counsellor in his clinical assessment show, to my mind, a propensity to pre-determinative influence and a lack of objectivity in his assessment and diagnosis. Experienced experts regularly caution these Courts as to the dangers of expert evidence without a balanced version of history from all relevant participants. As such, I place little weight and no persuasive weight on Mr B's report.
It follows that I am not satisfied on the balance of probabilities that the wife has discharged her onus to prove her assertions and allegations of family violence at the hands of the husband. It is her case that this violence caused or significantly contributed to her PTSD. She argues that this condition has removed her capacity for employment effectively since mid or late 2013. It is this assertion that grounds her argument as to her 'necessary and reasonable’ expenditure of joint funds of $223,064 since separation. It is this assertion that grounds her application for continuing spousal maintenance arguing that she has no capacity to work. It is this assertion which grounds her argument for an adjustment from the property pool in her favour under s.75(2) of the Act. It is this assertion which grounds her argument of superior contributions under the principles in Kennon.
I must therefore consider the property pool including the wife's use of $223,064 within the context of this finding. I also consider the parties contributions and the relevant s.75(2) factors accordingly.
The Property Pool
Firstly, I must determine how to treat or include the amount of $223,064 (net) removed by the wife from joint accounts following separation and used for her own benefit. I am now generally satisfied that the wife had capacity for employment. Conversely, there is no evidence before me that the wife has actively sought any employment from late 2013. There is no evidence of job applications. There is no evidence of re-training. The wife's own evidence is silent as to any attempts to support herself. There is no evidence by any workplace consultant or expert other than Mr B of her incapacity. There is no medical evidence as to any current or recent physical incapacity for employment with the most recent evidence being of some limited capacity for employment in late 2013. To the contrary, I accept the submission of Counsel for the husband that the wife has conducted a form of home business advertising on facebook as to her (business omitted). I am content that the establishment of a large shed on Mr W’s property was, on his own admission, to assist with this business. Without expert evidence, I am not prepared to accept the suggestion of the wife and Mr W that this was simply a ‘hobby’ purely for some therapeutic benefit to the wife. I prefer that it was a form of commercial enterprise requiring some intellectual and physical commitment by her. In summary there is no evidence before me to satisfy me that the wife was incapacitated for employment during the relevant period.
Secondly, the wife has been in a de facto relationship with Mr W since (omitted) 2013 being now for a period approaching five years. He asserted his support of her to the Immigration authorities. He was in employment until late 2017 albeit not always in full-time employment. He now candidly asserts his ability to re-enter the workforce and intends to do so at the conclusion of this Court case. There is no evidence of Mr W being responsible for any other dependents. I am generally satisfied as to Mr W’s commitment to the wife and his ability to have supported her financially since the beginning of the relationship. He appears to have qualifications as a (occupation omitted) but who has more recently worked in the (omitted) industry.
The evidence suggests that the husband has enjoyed a greater income than the wife’s potential earning capacity during that period.
The 'reasonableness’ of the wife's expenditure of $223,064 from joint funds must be seen within the context of her lifestyle during the relevant period. Significantly, the wife took a business class trip to (country omitted) in 2014 and during which time she unilaterally removed the funds from the parties’ joint account.
During this period the wife also had the benefit of $25,000 (agreed payment from the husband from joint funds) and $41,000 (redundancy and workers compensation payment).
Notably, the wife made no application for interim spousal maintenance at any time between the date of separation and the taking of evidence in this trial and is essentially asking the Court to consider retrospectively matters which could have been tested and assessed contemporaneously.
The wife at [24] of her affidavit attempts to offer an explanation as to her disbursement of the sum of $301,383 (monies unilaterally removed plus $25,000 from the husband together with her workers compensation and redundancy payments) in the four or so years since she stopped employment. Her evidence in Court in this respect was unconvincing. Her affidavit evidence, in my view, is an exercise in reconstructed accounting. Effectively, she claims to be 'repaying' Mr W for his support of her when, of course, they were living in a de facto relationship and Mr W has represented to the Department of Immigration as to his ability to support to his de facto partner through an income of $84,000 per annum. Further, and whilst numerous bunches of receipts were discovered and some tendered in evidence, they serve only to obfuscate the reality being that the wife was living in a de facto relationship with a man who appeared able and willing to support her. The wife's assertion as to her incapacity and/or 'reasonableness' of expenditure is not assisted by evidence as to some capital improvements to Mr W’s property paid by her or purchased during this time such as a hot tub and a shed.
Generally, therefore, I am not satisfied that the wife's expenditure of the sum of $223,064 (net) during the relevant period was necessary or reasonable. I accept, however, that the husband's earnings during that period would have been superior to that of the wife’s earning potential.
As such, it is not proper or just and equitable, in my view, to simply 'add-back' the sum of $223,064 on a dollar-by-dollar basis. Rather, I think it appropriate to consider the wife's use and benefit of these monies under s.75(2)(o) of the Act.There also remains some dispute as to the amount to be included in the property pool in respect of monies removed by the husband from joint funds in (country omitted) bank accounts. The wife argues simply that the husband's bank account recently and relevantly sits with a balance of $124,000 and that this substantially represents the monies retained by him at or near separation in 2013. Whilst the husband concedes that he has paid legal costs of some $60,000 from those monies, the wife's Counsel argues that this payment should be disregarded and it is mathematically simple and proper that a sum of $124,000 be included. Whilst I am mindful of the general proposition that a Court should consider the parties’ assets ‘at the date of the hearing’, I retain some discretion in this regard. I think it a simpler and 'cleaner' where the wife's unilateral retention of monies from the (country omitted) accounts is agreed at $223,064, that the husband's retention himself of monies be treated similarly. In dollar terms, I am satisfied that he retained $91,000. His bank balance has since been impacted by his subsequent earnings, savings and expenditure. Unlike the monies kept by the wife, those in the hands of the husband still exist and should be included in the pool. In doing so, I disregard those utilised for the payment of his legal costs or, in fact, ‘add them back'.
The parties otherwise agree their assets and liabilities the property pool of tangible assets is as follows:
Assets
Husband’s monies removed from (country omitted) account
$91,000
Pepperell’s ((country omitted)) deposit
$138,542
Husband's (country omitted) bank
$8,471
Husband’s (motorbike)
$4,000
$242,013
Liabilities
((country omitted)) Credit Card debt
(-$6,723)
Net Tangible Property
$235,290
The husband will retain the ((country omitted)) Credit Card liability.
The wife in her sworn financial statement claims personal credit card liabilities of almost $28,000. These were clearly accrued after separation. During evidence, however, it eventuated that these are actually the credit card liabilities of Mr W. Counsel for the husband argues that they are not, either illegally or in equity, debts of the marriage and circumstantially they relate simply to support afforded the wife by her de facto partner Mr W and this is a further example of the wife's 'reconstructive accounting' in claiming a ‘debt’ to Mr W on account of his financial support of her. Indeed, her Counsel in final submissions made proper concessions in respect of this liability in saying:
MR TREZISE:
… Now, with the credit card liability of the wife, I concede it would be generous to her for that sum to be taken to account in reduction of the asset pool. But it's there, and it’s something that she perhaps can have regard to under section 75(2)/
HIS HONOUR:
But you agree that it could lead to some injustice just to say she has got a $27,955 credit card, and I put that in the pool as a liability, and she gets it.
MR TREZISE:
Well, yes.
Both parties have Australian superannuation interests. The husband's entitlement is $66,305. The wife's entitlement is $13,075. I consider it proper that these entitlements be treated a 'second-pool'. They are not significant amounts. It is clear that the husband’s superior entitlement is primarily as a result of his post-separation contributions.
Financial Resources
Both parties have (country omitted) superannuation/pension entitlements. They are not to be 'treated as property' under the Act similar to Australian superannuation interests. They are more properly 'financial resources'. Actuarial evidence provided to the Court at the end of the evidence gives Ms Newbold a pension with a present value of $138,811 and Mr Chadwick a pension with a present value of $219,932. Mr Chadwick also has the benefit of a small Services pension the value of which is not provided but which I can assume from his short enlistment was not substantial.
Contributions
With the exception of the post-separation contributions to superannuation entitlements and the wife's argument on the 'Kennon principle', and despite a deal of contrary affidavit material, Counsel for each of the parties in their final addresses otherwise conceded that the contributions of these parties initially and during their marriage should be seen as equal. Indeed, the Court is mindful of the limited quantum of the property pool as it stands now, and is comfortably satisfied that neither of these parties were of any significant wealth as at the commencement of their cohabitation. They both worked during the marriage.
On my findings above, the wife does not make out a case of superior contribution under the principles in Kennon.
I am dealing with the parties’ (country omitted) pensions as financial resources. Their Australian pensions, however, have been accrued since 2011. In this sense, the husband has a greater entitlement than the wife but he has made a superior direct financial contribution to his superannuation entitlements since separation. The wife was employed for less than a year following separation in 2013 where as the husband’s contributions have continued unabated.
Section 75 (2) Considerations
Contrary to the submissions of Counsel for the husband, I do not think it proper to 'add-back on a dollar by dollar basis' the wife's unilateral removal and expenditure of the amount of $223,064. I prefer to consider this issue under s.75(2)(o) of the Act. I am satisfied that the husband would have enjoyed a greater income than the wife during the post-separation period even if she had continued to work. It is well-established that a discrepancy in income or income capacity is a relevant consideration.
The wife's argument at its most simplistic is that she was incapacitated for work in the period from late 2013 until the present due to PTSD caused by domestic violence on her at the hands of the husband. She has not proven these assertions on the balance of probabilities. As such, and whilst there may be other explanations (as suggested by the husband's Counsel) for Mr B’s diagnosis, I can put little weight on his report generally where he asserts family violence as the cause. Certainly, there is no evidence before me that the wife was psychologically incapacitated for employment many months after her separation from the husband when a medical assessment was made on her workers compensation claim in late 2013. There is no evidence whatsoever before me of any current physical incapacity in the wife for employment and indeed she does not so argue. There is no evidence before me of the wife attempting to obtain employment after 2013. It follows, therefore, that I cannot be satisfied on the balance of probabilities as to the wife's assertion that she has been incapacitated for employment following 2013. Her expenditure of the sum of $232,064 must therefore be seen in this context. Still further, however, is that the wife had entered into a de facto relationship with Mr W some six months prior to her ceasing employment and about 10 months prior to her receiving her workers compensation payments. The evidence satisfies me that Mr W had the capacity to financially support his partner and indeed took on that responsibility by his own representations to the Department of Immigration. The “reasonableness” of the wife’s expenditure of $223,064 suffers accordingly.
Ms Newbold did not make any application to this Court for interim spousal maintenance during the relevant period.
I also note that Ms Newbold had the benefit of a further $66,000 during the relevant period being a combination of the monies received from the husband ($25,000) and a combination of her redundancy and workers compensation ($41,000). It follows, therefore, that I reject the argument of Counsel for the wife that, in any event, her expenditure during this period was reasonable in that it encompassed a period of some four years or simply an average weekly expenditure consistent with her earning capacity.
I am of the view in all of the above circumstances that the unilateral removal of the sum of $223,064 (net) by the wife in all of these circumstances should be afforded considerable weight in any adjustment in favour of the husband within a s.75(2)(o) consideration.
I also take into account the relevant earning capacities of the parties into the future. The husband is in secure employment with a substantial income. The wife has not now worked for some time. Her skills and experience are in a discrete industry and I am satisfied that her earning capacity and potential is less than that of the husband. I accept, therefore, the submission of the wife’s Counsel that the most valuable asset that a party might retain after a separation and where the value of the property pool is limited is one’s earning capacity.
Both parties have re-partnered. Mr W candidly conceded that he intended to return to the workforce following at the completion of this litigation. He has qualifications as a (occupation omitted) and has worked in other areas. The husband and his partner are expecting a child in the near future and the husband assumes financial obligations accordingly.
It is proper in consideration of adjustments pursuant to s.75(2) of the Act to consider the extent and value of the property pool. The remaining pool of assets here is not substantial and which I quantify at $235,290. The monies removed by the wife are almost an equivalent quantum. The husband has an ongoing greater earning capacity albeit to be been within the context of the re-partnering of each party. The husband has greater Australian superannuation and (country omitted) pension entitlements and can potentially increase his superannuation himself to a higher level than the wife. Consequently, in taking into account all of the relevant considerations under s.75(2) of the Act, I am of the view that there should be an adjustment to the husband of 27.5% from the current property pool with obvious but not sole emphasis on the wife's removal and expenditure from the property pool of a net $223,064.
Conclusion
Consequently, I am satisfied that an adjustment of the net assets of the parties as they currently sit as to 77.5% to the husband and 22.5% to the wife is just and equitable.
If the pool of tangible net assets has value at $235,290 then the husband would receive value of $182,350 and the wife value of $52,940. The wife does not have possession of any of the assets listed above. Consequently, she would receive a sum of $52,940 from the monies jointly invested with Pepperells, Solicitors. The husband would receive the balance.
Neither party has substantial superannuation entitlements. They both have potential to remain in the workforce for some time and to superannuate themselves. The parties each contributed to their own superannuation entitlements from 2011 until separation. The wife's contributions then continued through until late 2013. The husband has contributed to his own superannuation ongoing since the January 2013 separation. It follows that the husband's superior current entitlement is primarily as a result of his superior contributions post-separation. In the circumstances, I intend to order simply that each party retain his and her own superannuation entitlements.
Spousal maintenance
On my findings above, the wife’s application for spousal maintenance must fail. Pursuant to s.72 of the Act a party to a marriage is liable to maintain the other party if and only if the applicant for spousal maintenance is unable to support himself or herself. That is, a threshold must be crossed before there is any consideration as to the respondent’s ability to pay.
The wife here has not satisfied the Court she is unable to support herself. She has not given or adduced evidence to satisfy psychological on physical incapacity. She gives no evidence of any attempts to obtain employment since late 2013. Her de facto partner concedes an intention to support her. He concedes an imminent return to the workforce. The wife does not cross the evidentiary threshold.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 14 February 2018
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