Norris (a pseudonym) v Brooks (a pseudonym)

[2022] NSWSC 804

Supreme Court

New South Wales

Medium Neutral Citation:

Norris (a pseudonym) v Brooks (a pseudonym) [2022] NSWSC 804

Hearing dates:

[Hearing dates redacted]

Date of orders:

29 September 2022

Decision date:

17 June 2022

Jurisdiction:

Equity

Before:

Robb J

Decision:

See pars 532 to 539 below

Catchwords:

FAMILY LAW — property — marriage — adjustment of property interests — allegations of family violence against wife and parties’ children by husband — Court satisfied that husband committed serious acts of family violence from time to time — allegations of sexual abuse of parties’ children by husband — acquittal of husband on criminal charges in respect of alleged sexual abuse — Court not satisfied that husband committed sexual abuse of parties’ children — effect of wife’s belief in allegations of sexual abuse against parties’ children on wife’s post-traumatic stress disorder and chronic depression — parties’ children are persons with disability — whether just and equitable to make order — adjustment ordered in proportions of 52.5% as to wife and 47.5% as to husband

FAMILY LAW — property — marriage — contributions — extensive history of dealings in real property in parties’ respective names — wife’s father exerts pressure on husband to transfer 80 percent interest in parcel of land to discretionary trust for benefit of wife and parties’ children — consideration of transfer in determining whether just and equitable to make order — consideration of transfer in determining contributions to children of the marriage — substantial contributions of parties’ respective families — Kennon principle applicable to effect of family violence on wife’s contributions

EVIDENCE — standard of proof — civil cases — credit of both plaintiff and defendant in doubt — whether principles concerning proof of facts and credibility of evidence differ between New South Wales courts and Federal courts — whether correct to follow Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in light of uniform Evidence Acts, s 140

Legislation Cited:

Conveyancing Act 1919 (NSW), s 66G

Crimes Act 1900 (NSW), ss 192G, 307A, 562ZY

Evidence Act 1995 (Cth), s 140

Evidence Act 1995 (NSW), s 140

Family Law Act 1975 (Cth), ss 4, 4AB, 75, 79, 117

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Succession Act 2006 (NSW), ss 59, 60

Trustee Act 1925 (NSW), s 63

Cases Cited:

Bainey & Bainey [2020] FCCA 1292

Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303

Bevan v Bevan (2014) 51 Fam LR 363; [2014] FamCAFC 19

Boseman & Boseman [2020] FCCA 1470

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Drury & Benson (No 2) [2020] FCCA 250

Giunta & Giunta (No 3) [2021] FamCA 272

Halsey & Jacombs [2020] FCCA 136

In the Marriage of Ferraro (1992) 16 Fam LR 1

In the Marriage of Kennon (1997) 22 Fam LR 1

In the Marriage of Kessey (1994) 18 Fam LR 149

Johnson & Page [2007] FamCA 1235

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Keating v Keating (2019) 59 Fam LR 58; [2019] FamCAFC 46

Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

Metzer & Metzer [2020] FCCA 119

Mynatt v Siddall [2020] FCCA 40

Nathan & Weston [2020] FamCA 541

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Norman & Norman [2010] FamCAFC 66

Palin & Palin [2020] FCCA 701

Palumbo & Mandel [2019] FamCAFC 228

Pavlis v Pavlis [2021] NSWSC 1117

Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69

Rowse & Gouker [2020] FCCA 3163

Roy & Yalden [2020] FamCA 1026

Norris v Norris(s 66G Proceedings) [2021] NSWSC 1676

Spagnardi v Spagnardi [2003] FamCA 905

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Trevi & Trevi [2018] FamCAFC 173

Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415

Warner & Pellin [2020] FCCA 1175

Category:

Principal judgment

Parties:

[Max Norris] (Plaintiff)
[Rachel Brooks] (Defendant)

Representation:

Counsel:
J Bennett (Plaintiff)
R Druitt (Defendant)

Solicitors:
Uther Webster Evans (Plaintiff)
Frank Law (Defendant)

File Number(s):

2020/065047

Judgment

Introduction

1. These are property settlement proceedings under s 79 of the Family Law Act 1975 (Cth) (the family law proceedings) instituted by Mr [Norris], the husband, against Ms [Brooks] (formerly [Norris]), the wife.

2. The family law proceedings were commenced by initiating application filed in the Family Court of Australia (Family Court) on 19 March 2015. The wife filed a response to the initiating application on 19 June 2015.

3. [The names of certain people, places and entities have been pseudonymised in these reasons in a manner proposed by the parties and amended slightly by the Court. These proceedings have involved allegations of grave misconduct, some of which have not been proved. Given the positions of the parties and their family, the Court has found it fit to modify these reasons accordingly to reasonably preserve the anonymity of the persons involved. Pseudonymised names (and this paragraph itself, which has been modified accordingly from the original provided to the parties) appear in square brackets. Any resemblance between pseudonyms used in these reasons and the names of any other person or thing is completely unintentional. Names left unmodified appear without square brackets.]

4. As they have either the husband’s or the wife’s surnames, I will, with no disrespect intended, refer to the members of both families by their [pseudonymised] first names.

5. On 21 January 2020, Foster J made an order by consent, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), that the family law proceedings be transferred to the Supreme Court of New South Wales. On the same date, an order was made vacating trial dates commencing on 4 February 2020.

6. According to a formal note made by Foster J, the transfer order was made because of the pendency in this Court of Case No 2018/351804, which was commenced by the wife and concerned the estate of her late father, [Grant] (the family provision proceedings). The defendant in those proceedings was the wife's brother, the executor of [Grant]’s estate. The wife’s brother prefers to be called [Lucas], which is the name that I will use. Foster J noted that there would be significant commonality between the two proceedings relating to the financial history of the parties and the wife's financial dealings during cohabitation. Furthermore, his Honour observed that the determination of the family law proceedings was essential to a final determination of the family provision proceedings.

7. As well as the family provision proceedings, there have been two other related proceedings in the Equity Division of this Court. Case No 2020/72919 (the equity proceedings) was proceedings between the wife and [Lucas], in which the wife apparently claimed an entitlement to relief arising out of her involvement in the affairs of her family, which were principally conducted by her father and mother, [Grant] and [Peta], with the involvement of [Lucas].

8. The other proceedings in this Court were Case No 2019/365199, between the parties' eldest daughter, [Laura], and the husband and the other members of the parties’ family (the s 66G proceedings). In those proceedings, [Laura] sought an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a property at [Suburb B] owned by [Laura], the husband, the wife and the other three children, being [Jess], [Craig] and [James], as tenants-in-common. The husband filed a cross claim in the s 66G proceedings in which he sought to establish that he was beneficially entitled to a greater share of the [Suburb B] because of circumstances that will be explained below.

9. Foster J may not have been aware of the existence of the s 66G proceedings, and it seems likely that the equity proceedings were commenced after the transfer order was made. Had it been necessary for this Court to determine all the proceedings at once, an array of contingent issues would have arisen that would have made it difficult for the parties and the Court to address all of the potential outcomes in the one hearing.

10. Mercifully, however, the risk of these difficulties abated because all the other proceedings in this Court were settled shortly before the hearing commenced. Consequently, this Court has been spared the need to resolve all the interconnected contingent issues that would have arisen. On the other hand, this Court has been left with the need to determine an extremely contentious family law property settlement proceeding.

11. The effect of the settlement of the family provision proceedings and the equity proceedings was that [Lucas], in his capacity as executor of his father's estate, agreed to make a payment to the wife which, when added to the legacy in her favour under her father's will, has created a fund in the wife's hands that the parties have called Pool 2. The family law proceedings have, in that respect, been simplified because the wife's various claims have now crystallised into a specific monetary entitlement.

12. The s 66G proceedings were settled by all parties thereto agreeing to the Court making an order for the appointment of trustees for the sale of the [Suburb B] Property. Furthermore, the husband abandoned his claim to have a beneficial interest in the [Suburb B] Property that was greater than the percentage interest he had on the title to the property. The family law proceedings were therefore simplified because the percentage interest of each co-tenant was established as being the share that was recorded on the title.

13. Additionally, serendipity intervened during the course of the hearing, as the trustees were approached by potential purchasers of the [Suburb B] Property, and, after a number of running hearings, and by consent of the co-owners and advice that the Court was able to give to the trustees, the trustees were able to enter into a contract for the sale of the [Suburb B] Property at a price that was substantially more than that suggested by the available valuation evidence. The family law proceedings have therefore been simplified to the extent that there is now evidence of the sale price in the contract, and the shares in the price to which the parties and their children are entitled are now known with relative certainty.

14. The proceedings were set down for hearing for 16 days commencing on 27 April 2021, on the basis that the Court was required to hear four separate proceedings. Notwithstanding the settlement of three of the proceedings, the parties ran the family law proceedings for 15 days and the hearing was recorded in 811 pages of transcript. The husband relied upon nine affidavits sworn by the husband, one affidavit sworn by his father, one sworn by his brother and two affidavits of his solicitors. The wife relied upon five affidavits sworn by the wife and five affidavits sworn by [Laura], as well as evidence from the wife's treating psychiatrist. The other children of the marriage did not give evidence. The parties eventually agreed to the removal of some of the documentary evidence from the 11 folders and one supplementary folder of the court book. The annexures and exhibits to the many affidavits were organised in meticulous chronological order in the court book, which in this case proved that chronological order may be functionally random. The parties presented the Court with numerous factual issues that they did not address in any detail in their submissions. As a practical matter, it has therefore been necessary for the Court to focus on the issues canvassed by the parties in their opening and closing written submissions and the oral submissions made by counsel.

Legal principles in property settlement proceedings

15. The central legal question in this case is whether the Court should make an order altering the interests of the parties in their property, and if so, what that order should be.

16. These proceedings are property settlement proceedings within the meaning of that term in s 4 of the Family Law Act. Consequently, and subject to the requirements of s 79, s 79(1) empowers the Court to “make such orders as it considers appropriate … altering the interests of the parties to the marriage in the property”. “Property” is defined in s 4 as meaning “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”. It is therefore necessary for the Court to start “by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”, as that must be done before a consideration of whether those interests should be altered can begin: Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 (Stanford) at [37] (French CJ, Hayne, Kiefel and Bell JJ).

17. As s 79(2) of the Family Law Act provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order” (emphasis added), an overarching requirement is that the Court must be so satisfied. Inherent in the concept of whether it is just and equitable to make the order proposed is the consideration of whether it is just and equitable to make any order that disturbs the status quo in respect of the ownership of property by the parties to the marriage. “In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order”: Stanford at [35] (French CJ, Hayne, Kiefel and Bell JJ). This question “is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property…”: Stanford at [40] (French CJ, Hayne, Kiefel and Bell JJ). As was observed by McClelland DCJ in Roy & Yalden [2020] FamCA 1026 at [74]: “neither the fact of marriage nor the ending of a marriage creates an assumption that there should be an adjustment of the parties’ property interests: Fazarri & Hsiao (No 2) [2018] FamCA 447 at [75]-[76], citing Stanford v Stanford (2012) 247 CLR 108 (Stanford) at 121 [39] per French CJ, Hayne, Kiefel and Bell JJ.”

18. The use of the term “may” in s 79(1) of the Family Law Act has the effect that the Court exercises a discretion in determining whether an order adjusting the property rights of the parties to the marriage should be made, and, if so, what that order should be. The power should not “be exercised according to an unguided judicial discretion”: Stanford at [38] (French CJ, Hayne, Kiefel and Bell JJ).

19. The term “just and equitable” is “a qualitative description of a conclusion reached after examination of a range of potentially competing considerations” and “does not admit of exhaustive definition”: Stanford at [36] (French CJ, Hayne, Kiefel and Bell JJ) (citation omitted).

20. If the Court determines that it will be just and equitable to make an order adjusting the property of the parties to a marriage, s 79(4) of the Family Law Act sets out factors that “the court shall take into account” in “considering what order (if any) should be made under this section” (emphasis added). Subsection (4) relevantly provides:

(4)   In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)   the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)   the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)   the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)   the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)   the matters referred to in subsection 75(2) so far as they are relevant; and …

21. As s 79(2) of the Family Law Act imposes on the Court a mandatory requirement that it be satisfied that it is just and equitable to make the order that is proposed, and the chapeau to s 79(4) requires the Court to take into account all of the listed matters in considering “what order (if any) should be made”, there is a necessary interplay between the overarching issue of whether any order should be made at all and the consideration of all of the factors relevant to the determination of what order would be appropriate, if any order should be made.

22. On the one hand, as the plurality in Stanford said at [40] (citation omitted):

[40] … The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

23. On the other hand, as McClelland DCJ said in Roy & Yalden at [76]:

[76] … The plurality in Bevan & Bevan (2013) FLC 93-545 (Bevan) rejected the notion that s 79(2) of the Act forms a threshold issue before undertaking an assessment of considerations in accordance with s 79(4): Hearne & Hearne (2015) 53 Fam LR 454 (Hearne) at 466 [72].

24. That means, as a practical matter, that there may be factors standing outside s 79(4) that have the result that it will not be just and equitable for the Court to make any order adjusting the property rights of the parties to a marriage, but also that the consideration of the factors listed in the subsection may lead to the conclusion that no order should be made.

25. As the plurality in Stanford said at [41]:

[41] … The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

26. The consideration by the plurality in Stanford of the significance of the stated or unstated assumptions and agreements by the parties to the marriage about property interests concluded with the following observations about how those matters may be relevant to the determination of whether it is just and equitable to make any order under s 79(1) of the Family Law Act, at [42]:

[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

27. In Bevan v Bevan (2014) 51 Fam LR 363; [2014] FamCAFC 19 (Bevan), Bryant CJ and Thackray J (Finn J generally agreeing) considered the position where the husband had elected to leave the relationship in 1994, at which time the parties had been married for about 22 years. The husband from time to time afterwards represented to the wife that she could retain their assets for herself and for their sons, on the basis that he would build his own life and acquire property elsewhere. Acting on the representations, and believing the assets were hers, the wife dealt with the property as if it were her own. This issue is material in the present case because the wife relies upon a number of notes that she claims were written by the husband in which he states that he will make no claim on the wife’s ownership of the [Suburb D] Property.

28. Their Honours referred at [40] to the reasons of the plurality in Stanford at [41], which is set out above, and then referred at [41] to reasons that they had given in an earlier judgment in the proceedings, where they had said:

[119] In our view, if the three “fundamental propositions” can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work while their relationship was intact.

[120] This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made … But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests …

29. Bryant CJ and Thackray J concluded this aspect of their reasons by repeating at [42] the view expressed in their earlier reasons: "that, in determining whether it would be just and equitable to make any order altering existing property interests, it would be necessary to have some regard to the matters mentioned in s 79(4), since it was accepted that it may not be considered just and equitable for the husband to be denied any entitlement in circumstances where it is accepted he made a significant contribution to property that may be seen as having provided the base from which the wife built the assets she now holds. However, such a contribution is but one matter to be considered in the exercise of the discretion conferred by s 79."

30. In Bevan, Bryant CJ and Thackray J concluded:

[91] Having given most careful consideration to the factors on both sides of this argument, we have determined that the extent of the representations made by the husband, the circumstances in which they were made, and the husband’s substantial delay in instituting proceedings are such that it would not be just and equitable to make any order interfering with existing interests in property.

31. I respectfully adopt the following statement by McClelland DCJ in Roy & Yalden concerning the approach that the Court should adopt to the determination of property settlement proceedings (footnotes omitted):

[77] Since the decision of the High Court in Stanford (supra), there has been some debate as to the approach that should be taken by the Court in the exercise of its discretion pursuant to s 79 of the Act.

[78] Prior to Stanford (supra), the Family Court had established principles for determining what kind of order is just and equitable under s 79(2) of the Act. In the leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 (“Hickey”) at 78,386 [39], it was held that the preferred approach was to adhere to the following four steps:

a)    identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);

b)    identify and determine each of the parties’ financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage);

c) assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors); and

d)    step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.

[79] That approach had been endorsed many times however, as the High Court noted in Stanford (supra), s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, unless it is satisfied that “in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford (supra), it has generally been the practice of the court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.

[80] More generally, in Petruski & Balewa (2013) 49 Fam LR 116 (“Petruski & Balewa”) at [49], the Full Court said:

The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship: Dickons v Dickons [2012] FamCAFC 154 (Dickons). As was also said by the Full Court in Lovine v Connor [2012] FamCAFC 168 at [40] and [41] (Lovine) such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise.”

32. However, the four-step approach is not prescriptive. In Norman & Norman [2010] FamCAFC 66 at [60], the Full Court held:

[60] It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.

Factual outline

33. In a case as contentious as this one, the Court has had to make a wide range of factual findings. As will be seen, however, this case is a complex instance of the chicken-and-egg dilemma posed by cases in which the credit of the witnesses is highly contentious. The determination of the credit that should ultimately be given to the witnesses' evidence depends upon an examination of the evidence on a number of factual issues, some of which are only relevant to credit and others of which concern the parties' substantive cases. Because of the importance of the issue of credit in this case, I will deal with some of the substantive issues in the context of considering the credibility of the witnesses. That is because some findings on substantive issues are important to the determination of credit, and then the credit findings affect the determination of other substantive issues. It will therefore assist an understanding of the reasons that follow if I introduce briefly the relevant persons in the parties’ lives and the series of residential properties that the parties have owned or occupied.

34. The wife was born in 1960 and the husband was born in 1968. They commenced a relationship in mid-1986 and married in late 1987. An order was made for the dissolution of the parties’ marriage on 21 October 2015. The parties have four children born in the following years: [Laura] in 1989, [Jess] in 1990, [Craig] in 1991 and [James] in 1993. Of the children, only [Laura] was called to give evidence.

35. The relevant members of the husband’s family are his brother [Steven], his parents [Jeff] and [Ella], his grandfather [Brian] and his grandmother. Of the husband’s family members, only [Steven] and [Jeff] were called to give evidence. The relevant members of the wife’s family are her brother [Lucas], her ex-sister-in-law, and her parents [Grant] and [Peta]. Of the wife’s family members, only [Lucas] was called to give evidence. [Grant] and [Peta] died before the hearing. Also involved in the events of this case is the company [G & P Brooks Pty Ltd] ([G & P Brooks]), the building company operated at various times by [Grant], [Peta] and [Lucas].

36. As to the parties’ history of properties, the wife brought into the marriage a residential allotment in her name that the parties called the First [Suburb O] Property. The parties lived in a home that was subsequently built on that property. That property was sold, and another property called the Second [Suburb O] Property was purchased in the name of the wife. That property was purchased from [Lucas] and had a pre-existing home erected on it. At one point the parties lived in rented accommodation which they called the Third [Suburb O] Property. In due course, the Second [Suburb O] Property was sold, and the proceeds of sale were used to buy a property at [Suburb D] in the name of the wife, which is still retained.

37. The husband brought into the marriage a property at [Suburb A] that was given to him by his grandfather and put in the husband’s name. A house was subsequently built on the [Suburb A] Property and rented out. At a certain time, the husband signed a transfer, following which the husband retained a 20% interest and the balance was held by the trustee of a discretionary trust, the beneficiaries of which were the wife and the children. When the [Suburb A] Property was sold, the proceeds of sale were used, with other monies borrowed by the wife and [Laura], to acquire the [Suburb B] Property, to which reference has been made above, in the names of the parties and the children in certain percentages. That property has now been sold.

38. There was also a property at [Suburb Q] that the parties purchased as joint tenants which was later sold, the sale proceeds of which were used to fund the construction of the house on the [Suburb A] Property.

Principles concerning proof of facts and credibility of witnesses

39. The credibility of the evidence given by the witnesses is a crucial issue in this case because the resolution of a great many issues of fact depends upon the testimony of the witnesses which is without objective corroboration.

40. In this case, not only is the oral evidence given by the parties' witnesses in conflict in respect of all manner of matters, large and small, but the wife has made the most serious allegations against the husband in respect of entrenched and repeated family violence against the wife and sexual abuse of his children. Even though the forensic effect of these allegations only goes to supporting a case that the division of the matrimonial property between the wife and the husband should be adjusted by an appropriate percentage to favour the wife, by reason of the consequences of the husband's conduct in making the wife's ability to contribute to the matrimonial property significantly more arduous, the allegations made by the wife are of the utmost gravity and damaging to the husband's character and reputation.

41. The inconsistency between much of the testimonial evidence given by the parties and their witnesses in this case is stark. The position adopted by the husband was one of total innocence in response to serious allegations made in the wife’s case and the position adopted by the wife was that the conduct of the husband was, in many respects, gravely delinquent. Although the evidence of the wife was relatively less absolute than that given by the husband, as will be seen, the wife point-blank denied many facts favourable to the husband's case.

42. Well-established authority provides guidance as to how the Court should go about determining the credibility of oral evidence given by witnesses, although a question arose as to whether the same principles are applied in this Court compared to the principles that are applicable in the Family Court or other federal courts. The classical statement of the proper approach to be adopted by the Court is that made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) at CLR 361-2, as follows:

... The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ...

43. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, Mason CJ, Brennan, Deane and Gaudron JJ said at ALJR 170-1 (footnotes omitted):

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.

44. Thus, in a civil case the standard of proof does not change and requires only that matters to be proved be established on the balance of probabilities. The seriousness of the issue does not impose upon the party propounding it a need to establish the issue on a more onerous basis than that it is more probably than not true. However, it is necessary for the Court to have a positive belief that the issue has been proved to the requisite standard. The seriousness of the allegation will have a bearing on the attainment of this judicial satisfaction, as it is a matter of experience that people do not generally act in a delinquent manner and the likelihood of them doing so in a particular case is generally inversely proportional to the seriousness of the conduct. Furthermore, the need for actual persuasion means that the Court may not be persuaded that the burden of proof has been satisfied just because the evidence led by one party is slightly more persuasive than that led by the other. The evidence may simply be insufficient to persuade the Court to believe the fact alleged.

45. This principle is now inherent in s 140 of the Evidence Act 1995 (NSW) which provides (the equivalent provision of the Evidence Act 1995 (Cth) being in the same terms):

(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 that 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, and

(b)   the nature of the subject-matter of the proceeding, and

(c)   the gravity of the matters alleged.

46. The wife sought to persuade the Court that, at least in federal courts, s 140 of the Evidence Act has supplanted the principle in Briginshaw. The wife relied upon the judgment of French and Jacobson JJ in Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69, where their Honours said at [110]:

[110] The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour's reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]-[61], concerning the application of s 140(2)(c) of the Evidence Act are consistent with her Honour's reasons. The first ground of cross-appeal therefore fails.

47. The passage in the separate judgment of Branson J with which their Honours agreed is:

[126] More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards — the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction.

[127] Briginshaw 60 CLR 336, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) (“the Evidence Act”) which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows:

…

[128] In Employment Advocate v Williamson (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; 110 ALR 449 at 449-450 (Neat Holdings) per Mason CJ, Brennan, Deane and Gaudron JJ:

…

48. Thus, s 140 of the Evidence Act does not operate differently from the principles discussed in Briginshaw. There is, in reality, no ‘Briginshaw test’, if such a ‘test’ is seen as referring to a standard of proof higher than the universal civil standard. The Briginshaw principle is really a philosophy of judicial reasoning.

49. Consequently, the wife’s additional reliance on the observations made by the Full Court of the Family Court in Johnson & Page [2007] FamCA 1235 at [69], that it is now more appropriate to refer to s 140 of the Evidence Act rather than to “the Briginshaw test” does not mean that the principles discussed by Dixon J have ceased to be relevant to the present case.

50. [In] 2015, the husband was arrested and charged with [multiple] counts of sexual assault based on allegations made by [Jess] and [Laura]. The husband pleaded not guilty to all charges. The husband's criminal trial [took place] in the New South Wales District Court […]. The wife, [Laura], [Jess] and [Lucas] gave evidence for the prosecution and the husband gave evidence in his own defence. The jury returned a unanimous verdict of 'not guilty' to all […] counts […], and the husband was acquitted.

51. The fact of the husband's acquittal of all the criminal charges made against him does not prevent the wife proving in these proceedings, on the balance of probabilities, that the husband in fact was guilty of the conduct alleged by her. However, for the purpose of the application of the principle in Briginshaw, which is no less relevant than the application of s 140(2)(c) of the Evidence Act, I consider that the fact of the husband's acquittal justifies him in expecting that the Court will take care to properly apply that principle, where it is asked to make findings of fact that are inconsistent with his acquittal.

52. The injunction in Briginshaw that, in any case, the Court “must feel an actual persuasion of [the] occurrence or existence [of a fact] before it can be found” is applicable to a substantial number of the facts in issue in this case, where proof depends only upon assertion and counter-assertion of witnesses whose credibility is questionable.

53. In Pavlis v Pavlis [2021] NSWSC 1117, Kunc J collected a number of authorities and stated propositions that are generally relevant to the fact-finding exercise in which the Court must engage, where that is dependent upon the credibility of the testimonial evidence of witnesses. As well as referring to the Briginshaw principle and s 140 of the Evidence Act, his Honour said, relevantly:

[158] In approaching the task of fact finding, particularly where credit is a significant issue, the Court has applied nine principles.

[159] First, at the forefront of the Court's approach has been the oft cited statement of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318–9:

... Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. …

54. This first proposition made by Kunc J applies to the present case, because a substantial proportion of the evidence consisted of assertions by interested parties and witnesses about conversations and events that occurred many years ago in the almost complete absence of objective, confirmatory evidence.

55. Relevantly, Kunc J continued by observing:

[162] Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.

[163] Fifth, evidence of independent witnesses (i.e. persons who have no reason to be partisan) may be decisive in resolving the conflicting evidence of interested parties.

56. In cases such as the present, where much of the evidence given by the parties and their witnesses is diametrically inconsistent, it may not be possible for the Court to form the necessary degree of satisfaction that the case of one or other party is valid unless evidence is given by a party against interest, or evidence can be called from an independent witness who can give evidence that shatters the illusion of validity of the case made by one of the parties. In such a case, the calling of independent evidence may be a crucial forensic step where that is possible.

57. Kunc J then set out the following propositions:

[164] Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084:

“118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.

…

121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.”

[165] Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings:

“155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].”

[166] Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (Cth) (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations omitted):

“The fact that a witness is disbelieved does not prove the opposite of what he asserted. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject, but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts.”

58. These observations are important to this case as the parties raised many issues the proof of which depended upon assertion in the absence of any significant exploration of the context. The parties appear to have expected that the Court would accept the evidence called by one party as credible and disregard the evidence called by the other as being unreliable, and consequently accept the first party's case, notwithstanding the tenuous nature of many aspects of the evidence. Except where a party's evidence is shown to be wholly unreliable, however, it is necessary for the Court to resolve all the issues separately, having regard to the persuasiveness of all the evidence relevant to each issue. Global findings about the credibility of any witness are usually not warranted.

59. The eighth proposition stated by Kunc J is important in this case, in which so many issues depend upon whether the evidence called by one party's witnesses or the other party's witnesses is accepted. The success of a party in diminishing the credibility of the other party's witnesses may not establish the issue in contention, because of a dearth of adequate persuasive evidence. The possibility is thereby increased that the Court will ultimately be driven to conclude that many of the issues propounded by both parties simply have not been proved.

60. Finally, his Honour said:

[167] Ninth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Ak-Tankiz v Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said at [187]:

“The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations.”

61. It is relevant in considering the ninth proposition stated by his Honour that s 79(4) of the Family Law Act states that "the court shall take into account" the matters that follow in considering what order (if any) should be made under the section. This Court has more experience in determining applications for further family provision under s 59 of the Succession Act 2006 (NSW), in respect of which s 60 lists matters that the Court "may have regard to" (emphasis added) for the purpose of determining the application. It may be that parties to property settlement proceedings under s 79 of the Family Law Act will respond to the mandatory terminology in s 79(4) by attempting to prove in a comprehensive way all of the matters that the Court "shall" take into account, even though, by reason of the passage of time, the complexity of the issues, and the paucity of available evidence, it is not realistic to expect the Court to make the findings sought, having regard to the matters considered by Kunc J in Pavlis v Pavlis, and other relevant evidentiary considerations.

Findings on credibility of witnesses

62. What follows are my findings on the credibility of each witness. These findings draw on my impressions of the witnesses based upon my observation of the way they gave their oral evidence and upon an exploration of historical matters impugning or bolstering their credit.

The husband

63. To all outwards appearances, the husband was a credible and satisfactory witness. The husband's demeanour was mild, attentive, responsive, immediate, and he appeared to be ready to accept minor corrections. The husband was not obliged to concede any major error in his evidence because of being confronted with objective, inconsistent evidence for which there was a sound evidentiary foundation.

64. The husband's evidence substantially involved the complete denial of the allegations of wrongdoing made against him by the wife in relation to family violence directed at the wife and the sexual abuse of their children. The husband did not make concessions involving a limited acknowledgement of the allegations made by the wife, with the apparent objective of minimising the significance of the allegations. As a forensic matter, that course carries with it the risk that any significant inconsistency with objective and credible independent evidence will cast a serious doubt over all the evidence given. A party who concedes some wrongdoing that is less than the total alleged is likely to find it easier to explain limited inconsistencies between the objective evidence and the matters conceded, than a party who has insisted upon absolute innocence.

65. The wife's principal submission against the credibility of the husband's evidence was that the husband made no admissions and remained baldly in denial in nearly every aspect of his alleged conduct. That will be so, if the Court starts from the assumption that all the wife's allegations are true; however, the submission begs the question. Plainly, the Court cannot conclude from a blanket claim of innocence that any or all charges are true. The Court is required to carefully review all the evidence to determine whether it should accept that any of the husband's denials are inconsistent, in a significant way, with what the evidence objectively establishes. If the Court makes such a finding, that will throw doubt over all of the husband's denials and may make it easier for the Court to accept the evidence that tends to establish other aspects of wrongdoing on the husband's part.

False tax returns

66. The husband’s credibility was damaged substantially by the evidence that he gave about his income tax returns. The husband said that all his income tax returns, during at least the period leading up to the time when he left the [Suburb D] Property in 2007, substantially understated his income. The husband’s position was that his understatement of his income was a matter between him and the Commissioner of Taxation, and that the Court should simply accept his testimony concerning the amount of the income that he actually earned and the amount of the cash that he gave to the wife weekly for the maintenance of the family. However, the persistent understatement by the husband of his income in his tax returns, which must have been accompanied by knowingly false declarations concerning the accuracy of the returns, demonstrates a serious propensity on the part of the husband to engage in deceit for financial benefit.

Evidence of family violence given by [Lucas]

67. The husband’s credibility was further undermined by evidence given by [Lucas], which will be considered below in the context of the allegations of family violence, that, contrary to the husband’s denials, he sometimes drank alcohol to excess, and that [Lucas] witnessed the wife’s injuries on a number of occasions that she attributed to the husband’s family violence.

Attempt to borrow $600,000

68. The husband was cross-examined by counsel for the wife about a proposed borrowing of $600,000 from Perpetual Trustees Australia Ltd on the security of the [Suburb A] Property, which was in the sole name of the husband.

69. The court book included the following documents relevant to this issue:

• A letter from [Dynasty Mortgage Corporation Pty Ltd] addressed to the husband at [Suburb D] congratulating him for the formal approval of a $600,000 loan.

• A loan contract offer from [Dynasty Mortgage Corporation Pty Ltd] addressed to the husband at [Suburb D]. The credit provider is Perpetual Trustees Australia Ltd, and the borrower is the husband. The loan type is a line of credit. The acceptance note on page 8 appears to include the signature of the husband and what appears to be the signature of the solicitor, [Russell Nichols], as witness, and is dated 4 December 2003. Page 9 contains a certification of the giving of legal advice by [Russell Nichols] on 4 December 2003, and the certification appears to be signed by the husband. The final part of the loan contract offer is a statutory declaration apparently made by the husband and witnessed by [Russell Nichols] concerning the state of the [Suburb A] Property. It includes a statement: "The Property is normally subject to a residential tenancy agreement and market rent is normally paid by a tenant under that agreement. The property should be re-let soon at a rental of approximately $410 PW'. (The underlined words have been added to the document in handwriting).

• An identification record for a signatory to an account dated 4 December 2003. This document identifies the husband as the signatory and appears to have been signed by him and by [Russell Nichols] as his referee. Mr [Nichols] states that he has known the signatory for a period of 10 years, and that he identified the signatory by a birth certificate issued on [XX September 20XX] with document number [XXXX/YYYY].

517. However, as a result of the settlement of the family provision proceedings and the legacy in her father's will, the wife is now entitled to the assets in Pool 2 that are valued at $1,205,619.

518. It is unlikely that the wife, from her own resources, will be able to retain the [Suburb D] Property as her home if the Court makes an order that entitles the husband to a significantly greater share of the matrimonial property than he has at present.

519. Although the Court cannot treat the children's shares in the net proceeds of sale of the [Suburb B] Property as being available to the wife for her own purposes, I am satisfied that at least [Laura]'s share will probably provide a backstop to the wife for needs that she might not be able to afford herself.

520. The husband's evidence in his financial statement filed on 9 March 2021 was that his average weekly income from his employment as a builder was $333 and that he received assistance from his appearance of $350 for housing and food expenses and $150 for fuel and car maintenance. His total personal expenditure was $392 per week.

521. I accept that the husband's earning capacity has been reduced as a result of the psychological strain of the criminal proceedings, which are also likely to have damaged his reputation. There was evidence that the husband had an earning capacity of $40 per hour, and I accept the force of the wife's submission that the husband should be able to earn $800 per week if he only worked 20 hours. On the evidence, I consider that the wife's submission that the husband has a realistic prospect of earning about $80,000 per annum is fanciful.

522. The husband does not have a home of his own. He lives with his parents and his father gave evidence that the husband will be welcome to stay in the parent's home indefinitely. I reject the wife's submission that this arrangement should be treated as adequate and that the husband is not reasonably entitled to expect to own his own home.

523. There was no evidence about the likelihood of the husband inheriting a substantial amount from his parents.

524. Neither party has good employment prospects or a reasonable expectation that they will be able to support themselves to a satisfactory standard of living from their earnings.

Eligibility for pension, allowance or benefit – s 75(2)(f)

526. The wife is entitled to a small amount of superannuation of $61,432. The husband did not make any submissions concerning the significance of this asset.

Circumstances relevant to the justice of the case – s 75(2)(o)

527. The wife submitted that the Court should make an adjustment in the division of the matrimonial property in her favour because she alone of the parties will have to provide continuing support and assistance to each of the four children of the marriage into the indefinite future.

528. In Palumbo & Mandel [2019] FamCAFC 228, the Full Court of the Family Court said:

[56] There is no doubt that s 75(2)(c) directs attention to children of the marriage who have not attained the age of 18 years. However, s 75(2)(o) is expressed in the widest terms and enables the Court to take into account "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". It is well settled that s 75(2)(o) enables the Court to take into account the financial consequences to a party arising from that party's care or support of an adult child.

[57] In the primary judge made an adjustment in favour of a party by reason of that party's care of an adult child who had autism. The primary judge also took into account that party's expected "financial burdens" for a child who was then 17 years old that would arise once that child commenced tertiary studies. The Full Court in that case said at [183]:

...[T]he section 75(2) adjustment determined by the trial Judge included, as we have earlier indicated, a significant adjustment for the future care of the parties' children. Nothing to which we have been referred demonstrates that the trial Judge's discretion miscarried, or was based upon material errors of fact. Nothing to which we have been referred demonstrates that the section 75(2) adjustment determined by the trial Judge, which favoured the wife by approximately $1.4 million, was based upon inadequate recognition of the wife's future parenting of the children.

[58] In Zaruba & Zaruba (2017) FLC 93-776, an adjustment was made in favour of a party by reason of that party's ongoing care of her adult daughter who had a significant disability, albeit, the adult daughter was not a child of the other party. In relation to this approach, the Full Court said at [130]:

His Honour found that "[the wife's disabled daughter] is now 18 years old and whether the wife has a legal duty to maintain her remains an open question on the evidence" (at [156]). Given the combined effect of s 66C and s 66L of the Act in light of his Honour's findings that the adult child suffers from a "significant disability", it may be said that the wife does indeed have "a legal duty to maintain her". Be that as it may, past care of that child, now an adult; receipt of the carer's pension and the evidence of the modifications to the Mindarie property to which we have referred all point to the future care of the wife's daughter being a significant matter pursuant to s 75(2)(o) of the Act.

[59] A similar approach was taken in D & D [2004] FMCAFam 154 by Bryant CFM (as she then was) who made an adjustment in favour of a party who had full time care of the parties' 26 year old child who had a significant disability. Bryant CFM determined that caring for the adult child was "a full time and unrelenting task which [the mother] will undoubtedly carry out for the rest of her life, at least until she becomes unable by virtue of her own health to do so" [31] and which justified a sizeable adjustment in the mother's favour.

[60] From these cases, it can be seen that cogent reasons were given for the adjustment arising from the care and support of adult children and the evidence was much more than mere speculation about whether the adult child would remain in that party's care.

529. I accept the wife's submission that she will have to provide a substantial amount of ongoing assistance to each of the children indefinitely. The wife will have to continue to act as a nurse for [Laura] and to assist in the administration of the lives of the other children.

530. However, flowing from his original ownership of the [Suburb A] Property through the transfer of an 80% interest in that property to the Trust, and the purchase of the [Suburb B] Property in which the children received a total share of 81%, the husband has already provided a substantial fund for the future maintenance and advancement of the children. It would be unfair and inequitable for the Court to ignore this provision and to weight the division of the remaining matrimonial property in favour of the wife because of her need to provide ongoing care for the children.

531. The size of the provision made for the children out of the contributions of the husband is in my view so large as to justify the husband receiving a greater proportion of the existing matrimonial property than he now holds in his own name, and also to match the additional burden that the wife will carry into the future in providing assistance to the children.

Will the proposed orders yield a just and equitable result?

532. In the somewhat extraordinary circumstances of this case, I have come to the view that an order should be made under s 79 of the Family Law Act that has the effect that the existing matrimonial property of the parties is divided between them in the proportion 52.5% in favour of the wife and 47.5% in favour of the husband. That is prima facie a just and equitable result for the reasons that I have given above.

533. The greater future needs of the wife will be accommodated within her sole entitlement to the assets in Pool 2. Because the husband also has significant needs, it would not be just and equitable to reduce his share in the matrimonial property to further benefit the wife.

534. The most significant factor in the history of the matrimonial property of the parties is plainly the intervention of [Grant] in causing the husband to transfer 80% of his interest in the [Suburb A] Property to the Trust. That has imposed upon the parties a stringency that they would not have had to deal with if [Grant] had not intervened. All that can be said is that it led to a corresponding benefit for the children that has alleviated the burden on the parties to care for the children in the future.

Future progress

535. I will invite the parties to propose orders to give effect to these reasons by providing draft short minutes of order to my Associate, subject to the following observations.

536. I appreciate that I have not resolved the issue of whether the value of the [Suburb D] Property should be determined by requiring that the property be put to auction. Whether that should happen depends in part on whether, following the publication of these reasons, the wife wishes to retain ownership of the [Suburb D] Property and whether she will have the financial resources to do so.

537. As some time has passed since the Court reserved judgment, there is a question whether the Court should put the parties to the inconvenience of an auction of the [Suburb D] Property without evidence that the sale price is likely to be considerably more than the value that has already been determined by the parties’ expert valuer.

538. As the contract for the sale of the [Suburb B] Property was entered into during the course of the hearing, and the contract was completed after judgment was reserved, additional issues may have arisen that are material to the orders that the Court should make.

539. The parties should confer and provide proposed short minutes of order to my Associate within 21 days. As it is probable that a further hearing will be required to consider the orders that should be made, the parties have leave to approach my Associate for the purpose of fixing an appropriate hearing date after the 21-day period has elapsed.

540. I record that these reasons for judgment were substantially completed by 23 March 2022 but on 31 March 2022 the husband foreshadowed making an application to reopen his case. The steps necessary to determine whether the application should be made were not resolved until 31 May 2022. On 3 June 2022 my Associate was advised on behalf of the husband that the application to reopen would not proceed.

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Decision last updated: 31 October 2022