PALMER & PALMER
[2010] FMCAfam 999
•22 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PALMER & PALMER | [2010] FMCAfam 999 |
| FAMILY LAW – Children – spending time with a parent – property – relevance of domestic violence – dicta of the Full Court of the Family Court in Kennon & Kennon (1997) FLC 92-757 not followed – held that it is not appropriate to give additional weight to the contributions of a party by reason of the fact that that party’s contributions were made more arduous by violence inflicted by the other party – relevance of a stepchild in the household – relevance of the wife’s care of a child with disabilities. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA , 65DAA, 75(2), 79 Matrimonial Causes Act 1959 |
| Cuneo & Cuneo and Cuneo [2006] FamCA 158 Figgins and Figgins (2002) FLC 93-122 Griffith v Kerkemeyer (1977) 139 CLR 161 JEL and DDF (2001) FLC 93-075 Kennon &Kennon (1997) FLC 92-757 Kozovska and Kozovski [2009] FMCAfam 1014 Lambertv Lambert [2002] EWCA Civ 1685 Le Brogue v Le Brogue [1964] 3 All ER 464 Mueller and Hegedues (1979) FLC 90-708 Robb and Robb (1995) FLC 92-555 S & S [2003] FamCA 905 White v White [2001] 1 All ER 1 Williams and Williams (1984) FLC 91-541 Williams v Williams (1985) FLC 91-628 |
| Applicant: | MR PALMER |
| Respondent: | MS PALMER |
| File Number: | CAC 1110 of 2009 |
| Judgment of: | Brewster FM |
| Hearing dates: | 17 & 18 March 2010 |
| Delivered at: | Canberra |
| Delivered on: | 22 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Counsel for the Respondent: | Ms Haughton |
| Solicitors for the Respondent: | Strong Law Pty Ltd |
ORDERS
That the Mother have sole parental responsibility for the children [X] born [in] 1997 and [Y] born [in] 1999;
That the children live with the Mother;
That the children spend time with the Father as follows:
(a)on each alternate weekend from 10.00am on Saturday until 5pm on Sunday;
(b)on each Wednesday between 7pm and 8pm by telephone with the Father to call the Mother’s mobile or the mobile provided for the children provided that the Mother is entitled to telephone the children during the same hours when they are with the Father on Saturday nights.
(c)
from 9am on Boxing Day until 5pm on 27th December in 2010 and in each alternate year thereafter and from 5pm on
24 December until 9am on Boxing Day in 2011 and each alternate year thereafter;
(d)That notwithstanding whether the Father is ordinarily due to spend time with the children the Mother shall have the children with her from 5pm on 24 December until 9am on Boxing Day in 2010 and each alternate year thereafter and from 9am on Boxing Day until 5pm on 27th December in 2011 in each alternate year thereafter.
(e)That if the Father’s Day weekend falls on a weekend when the children are with the Mother they shall spend time with the Father 6pm on the Saturday until 5pm on the Sunday;
(f)That if the Mother’s Day weekend falls on a weekend when the children are with the Father they shall spend time with the Mother 6pm on the Saturday until 5pm on the Sunday;
That notwithstanding Order 3(a) the Mother shall be entitled to take the children away for a period of 3 weeks in every year and she shall notify the Father in writing of her intention to do so no less than 28 days in advance. The Father’s weekend time during that period will be suspended.
That the Father shall forthwith do all things necessary to complete all documents necessary to renew the children’s passports including their Australian passport and in particular those documents necessary to renew the children’s American passports which entitle them to travel to the USA. The mother shall pay the necessary fees required to renew the passports and shall be entitled to hold the passports on behalf of the children.
That the Mother shall be entitled to remove the children from the Commonwealth of Australia for a block period of no more than
3 weeks in each year for the purpose of a holiday in the USA or any other country. If she elects to do so she shall:
(a)notify the Father in writing no less than 6 weeks prior to her intended departure;
(b)provide the Father with details of her flight itinerary including a contact number on which the children can be contacted during that period;
That the Mother shall authorise all treating medical practitioners to provide information to the Father as sought by him and she shall notify him of the names of the treating practitioners;
That the Mother shall authorise the children’s schools to provide information to the Father as sought by him;
That the parties shall each notify the other of any medical emergency involving the children as soon as practicable thereafter.
That within 45 days of the date of these orders the husband pay to the wife the sum of $219,000.
That contemporaneous with that payment the wife transfer to the husband all her interest in the former matrimonial home situated Property S in the Australian Capital Territory (“the home”).
That simultaneous with this transfer the husband do all things necessary to discharge the mortgage and associated draw down facility secured against the home insofar as it imposes any liability on the wife.
That if the husband is unable or unwilling to pay the amount referred to above the parties take all steps to sell the home and to divide the proceeds between them such that overall, having regard to the findings in this judgment, those proceeds are divided such that the wife receives 73% of the total pool.
That as against the other each party be entitled to retain all chattels in his or her possession and all choses-in-action in his or her name.
That in accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable on behalf of the husband Mr Palmer from the interest in the [M] Superannuation and Benefits Scheme the wife Ms Palmer is entitled to be paid by the Trustee an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $260,000 and there is to be a corresponding reduction in the entitlement
Mr Palmer would have but for these orders.
That the operative time in relation to this order is four business days after the service of these orders on the Trustee.
That I direct that the solicitors for the wife send a copy of these orders to the Trustee. The trustee is requested to advise of any objections to the orders within 28 days of the date the orders are sent. The superannuation orders will not become final orders until 28 have elapsed from service or when any objections raised by the Trustee have been resolved whichever is the later.
IT IS NOTED that publication of this judgment under the pseudonym Palmer & Palmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Canberra |
CAC 1110 of 2009
| MR PALMER |
Applicant
And
| MS PALMER |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves a dispute between the parties as to the time the husband should spend with the parties’ two children and property division.
I apologise for the delay in producing this judgement which is well outside the three months protocol adopted by the Court. In part this is because of a misunderstanding as to whether or not the Court would be receiving written submissions after the conclusion of the hearing. However this only accounts for a part of the delay.
Background
The husband was born [in] 1964 and the wife [in] 1964. They commenced their relationship in about April or May 1991. They commenced cohabitation in about May 1992. They married [in] 1993. There are two children of the marriage who are the subject of this litigation. They are [X], who was born [in] 1997 and is therefore aged 12 and [Y], who was born [in] 1999 and is therefore aged 10 going on 11. The wife has a child from a former relationship [Z], who was born [in] 1985. The parties separated in March 2009 when the wife left the former matrimonial home at Property S. In this judgment I shall call this property “the home.” She took the children with her and they have continued to live with her since. It is unnecessary to set out the details of the husband’s contact with the children save to note that on
2 November 2009 interim orders were made for him to have the children from 10am Saturday to 5pm Sunday each alternate weekend. I made children’s orders more or less in terms of these orders on
22 June 2010 which I intended to be interim orders but were not expressed that way. I point this out because it is and always was my intention that the appeal period should run from today, not from June.
Children’s Matters
The parties’ applications
The husband seeks an order that he spend time with the children on a graduating basis. He proposes that commencing in the second term in 2010 he spend time with the children each alternate weekend from after school Friday until the commencement of school on Monday (or Tuesday if a long weekend). He proposes that that be extended to commence on Thursday from third term 2010 and that in fourth term in each alternate week he should have the children in the other week from Thursday after school until the commencement of school on Friday. From second term 2010 he proposes that he have the children for half the school holidays. He also seeks orders in relation to special days.
The wife seeks an order that the husband spend time with the children each alternate weekend from 10.00am Saturday until 5.00pm Sunday. She proposes telephone contact on Wednesdays and makes provision from special days.
Discussion
Section 60CA of the Family Law Act requires me to regard the best interests of the children as the paramount consideration in making orders in this case. A backdrop to this is section 60B of the Act which sets out the objects of the Act insofar as it addresses children’s matters and the principles underlying those objects. I have regard in particular section 60B(1)(a) which recites that one of the objects of the Act is to ensure that children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. As can be seen I have made orders in accordance with the mother’s proposal. This does not involve the husband having a meaningful involvement in the children’s lives to anything that could be considered the “maximum extent” but, as can be seen, I do not regard that in their best interests.
Section 60CC sets out the matters which I must consider when making a determination as to what is in the best interests of the children. It divides the considerations into primary considerations and additional considerations.
The primary considerations are first the benefit to the children of having a meaningful relationship with both their parents and second the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I do not intend to take this opportunity to engage in a semantic discussion of what does or does not constitute a “meaningful relationship”. I acknowledge, and I made this clear to the wife at the conclusion of the hearing in this matter, that I regard the orders I make as inadequate when it comes to providing an optimal relationship between the children and the husband. I am of the view that it would be in the best interests of these children were they ultimately to overcome their difficulties with the husband and spend more time with him than is provided for in my orders. I hope that over time this will occur. I discussed this matter with the wife at the conclusion of the hearing in this matter and I was satisfied that she is of goodwill and acknowledges the benefit to the children of having as close as possible a relationship with their father. I am satisfied that she will not place any impediment on the development of such a relationship.
Issues of violence have formed a significant part in this case. However insofar as children’s matters are concerned it is not the violence itself but the impact that that has had on the children and their perceptions of the husband that is important. I am satisfied that the violence which I find was perpetrated by the husband had a significant impact on the wife but it was, in my opinion, “situation specific”. That is it was related to the relationship between the husband and the wife. Absent such a relationship I do not believe that there is an unacceptable risk that the children will be directly exposed to violence.
It is convenient at this stage if I mention one of the orders which was sought by the mother. This is not in her Minute of Orders but was adverted to by her counsel at the hearing. That is that the husband be restrained from inflicting physical punishment on the children.
I do not propose to make such an order. This is not because I condone physical punishment of children. I do not. But if the husband is to hold out any hope of the relationship between he and the children improving, and the time he spends with the children increasing, it is absolutely essential that he not physically punish the children. Such an action would be totally counterproductive. I do not think it is necessary to make such an order. If the husband physically disciplined either of the children I imagine events would take their own course and issues of breaching a court order would become irrelevant.
The additional considerations are set out in section 60CC(3). I will discuss each paragraph in this sub-section in turn although most of them do not form a part of my decision.
Paragraph (a) of section 60CC(3) refers to any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks relevant to the weight it should give to the children’s views.
[X] is aged almost 13 and [Y] 11 and there is no indication that either of them lacks maturity. Their views must be given significant weight.
The Court has the advantage of a report by Ms S, a Regulation 7 Expert. Ms S interviewed the children on two occasions and produced two reports. The first was in October 2009 and the second in March 2010. For the purposes considering the children’s views I need only discuss the second of these reports.
Ms S interviewed both children. In relation to [X]’s views she reported at paragraph 6.4 of her report as follows:
[X] clearly did not want to give up on his dad. “I think one night is OK”, he said. “Three nights is too much… I just can’t picture Dad getting us ready in the morning. Previously when Mum went to work early he didn’t manage… got stressed, angry, and rushing us, wanting to get to his work”.
At paragraph 6.6 Ms S reported as follows:
[X]’s feeling about contact weekends was, “Sometimes I just don’t mind it, and sometimes I just don’t feel like going. It’s always stressful when we go there. He added “Once I calm [Y] down and she rings Mum a couple of times, It’s OK”. A bit later in the interview, [X] intimated, “I’d like a little break from it sometimes, even though it’s only alternate weekends. It’s weird going to the old house where there were so many arguments”.
It is apparent that [X] would not wish me to impose a regimen in accordance with the husband’s application and that his views are more consonant with the wife’s application.
When Ms S interviewed [Y] she reported as follows at paragraph 6.14:
According to [Y], their dad wanted to have them 50% of the time. “I want less time”, she said. She would prefer to go back to just seeing her dad during the day on a Sunday once a fortnight, she said firmly. In response to my enquiry about her not getting along with her dad, [Y] informed me that she had recently told him, “I’m going home because I miss my mum” and had headed out the back door. “Dad dragged me inside”, she added.
It is plain that the arrangements proposed by the wife would represent the outer limits, at best, of the arrangements that would be consonant with [Y]’s views.
Paragraph (b) requires me to consider the relationship of the children with each of their parents and other persons. In this case it is the relationship with the parents that is relevant.
It is plain from all the evidence, including that of Ms S, that the children have a close relationship with their mother and that that is their primary bond.
The children’s relationship with their father is more ambivalent. When Ms S spoke to [X] for the purposes of the second report [X] told her “Dad and I don’t really have a strong relationship. Never have”. For the purposes of the 2009 report Ms S administered the Bene-Anthony Family Relationships Test. Ms S reported in relation to [X]’s that “in contrast (to the relationship with the wife), the relationship with his father, while psychologically influential, appeared to have been experienced as largely negative. The individual items allocated his father suggested that [X] experienced this person as angry, impatient and quick-tempered, and as frequently hurting [X] and making him feel afraid and angry. In allocating to his dad an item suggesting that this person was “very nice” to him, [X] commented quietly “sometimes”.
In relation to [Y] Ms S reported that “The results suggested that [Y] experienced her relationship with her dad as mainly negative. Some items allocated to her dad suggested that he was angry, impatient, bad-tempered, and punishing. Other items allocated to him indicated that he made her feel afraid and unhappy, and did not love her enough”.
I shall return to this later in the judgment.
Paragraph (c) refers to the willingness and ability of each of the children’s parents to facilitate, and encourage a close and continuing relationship between the children and the other parent.
The husband is convinced that the wife is turning the children against him. In this respect Ms S reports as follows at paragraph 5.23:
In my opinion it was regrettable that Mr Palmer was preoccupied with the idea that Ms Palmer was manipulating [Y], and that he could not entertain the idea that there might be something he could do differently. I asked him to imagine, for a moment, that he believed Ms Palmer was doing her best to facilitate his relationships with the children, and tell me what he might be doing differently. He was at a loss for a reply because he “knew” that it was not true.
This is not consistent with [X]’s view. [X] told Ms S that “Mum just tells us she wants us to have a relationship with Dad ‘cause it’s best for us”. I have had the advantage of hearing the wife give evidence. I further had a discussion with her at the conclusion of the case when I indicated the orders that I would make in relation to children’s matters. I have no doubt that she has a willingness and a wish to facilitate and encourage a close and continuing relationship between the children and the husband. She has formed the view that there should only be limited contact between the father and the children. I have no doubt that she has taken this stance because she believes it is in the best interests of the children. I share her view.
Paragraph (d) refers to the likely effect of any changes in the children’s circumstances, including the likely effect of the children on any separation from either of their parents. I will discuss this, in general terms, later in this judgment.
Paragraph (e) refers to the practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis. Both parents live in Canberra so this is not an issue.
Paragraph (f) refers to the capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs. In this context it is the parents who are relevant. I need not rely on this paragraph in reaching a decision in this case.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents, and any other circumstance of the children I think are relevant. This paragraph is not applicable.
Paragraph (h) refers to Aboriginal or Torres Strait Islander children and is not relevant.
Paragraph (i) refers to the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents. Some of the matters that I will refer to subsequently are relevant to this paragraph but I do not need to rely on it in reaching a decision in this matter.
Paragraph (j) refers to any family violence involving the children or a member of their family.
I do not propose to dilate on this matter. The wife alleges numerous incidents of violence perpetrated against her, her son [Z], and to a lesser extent [X] and [Y]. I do not accept her evidence completely. This is not a criticism of her. It is common place, indeed almost inevitable, that parties to a relationship which has ended will perceive events in that relationship through their own subjective prism. Whilst the wife admitted to some provocative conduct I suspect that her role in the violent episodes that occurred between the parties was more significant than she will admit. As I have said I need not dilate on the various allegations made by the wife. It is sufficient to say that the children have formed a clear view that the husband exhibited violence during the relationship and exhibited an inflexible and harsh attitude. I prefer, if possible, to avoid making findings critical of a party and I only do so if it necessary to support my judgment. I prefer that if possible parties in litigation in this Court should leave the Court with their dignity, self respect and reputation intact. Any detailed discussion of the events of the marriage, and my findings in relation to those events, would be unnecessary and I decline to enter into such discussion.
Paragraph (k) refers any family violence order that applies to the children or a member of their family. It is not relevant.
Paragraph (l) requires me to consider whether it would be preferable to make the order that would least likely to lead to the institution of further proceedings related to the children.
As I have indicated, and as I indicated to the wife at the conclusion of the hearing, I hope that the orders that I make now will not represent the arrangement in the longer term. However I do not believe, even though they represent a reasonably minimalist approach to the time the husband spends with the children, that they are likely to lead to further litigation. I have confidence that the wife will be attuned to the wishes of the children and if, in the future, they express a wish to spend more time with the husband that she will accommodate that wish.
Paragraph (m) refers to any other fact or circumstance that I think is relevant. Such facts or circumstances will emerge in the balance of this judgment.
Section 60CC(4) requires me to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. The sub-section sets out certain criteria which must be particularly considered.
One of the criteria specified in this sub-section is the extent to which a parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent in relation to his or her obligation to maintain the children. This was the subject of some cross-examination during the case. I do not propose to dilate on the evidence. Suffice it to say that I do not make a finding that the husband has failed to fulfil his responsibilities as a parent in this respect.
I now turn to the issue of parental responsibility.
The wife seeks an order that she have sole parental responsibility for the children. The husband seeks an order that the parties have equal shared parental responsibility.
This issue was not ventilated at all during the hearing. However I must make such a decision.
Section 61DA of the Family Law Act requires that when making a parenting order in relation to children, and I am making parenting orders in this case, I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for those children. Sub-section (2) provides that that presumption does not apply where there has been family violence. I am satisfied that there has been family violence in this case and I approach the issue of parental responsibility unencumbered by any presumption.
I assume that the wife’s application is based on the fact that the parties are unable to communicate, at least to an optimal degree, in relation to the children. The husband, as I understood his case, would put this down to the “fault” of the wife. As I indicated during the hearing I do usually not find the concept of fault particularly helpful when considering the complex dynamics and difficulties of communication between parties who were once in an intimate relationship and have now fallen out. However I do propose to make an order that the parties have equal shared parental responsibility for the children. This does not require them to constantly communicate in relation to the children. It does require them to consult together, and make a genuine effort to reach agreement, in relation to long term issues concerning the children. In reality such long term issues are few. The one that occurs more frequently than others is the school the children are to attend. There are no other decisions of a long term nature that I can envisage as being likely to emerge in this case. I see no reason why the husband should be excluded from having a say in such long term issues as may arise. There is no requirement in the Act that communication between the parties to endeavour to reach agreement about these matters should be face to face.
Making an order for equal shared parental responsibility brings into play section 65DAA of the Act. So far as it is relevant to this case it requires me to consider whether I should make an order that the children spend substantial and significant time with the father. Substantial and significant time is defined in the section as being time with the children that includes time other than weekends and holidays and time which is of significance to children or the parent and time which enables a parent to be involved in the day to day routine of the children. The husband’s application is that he have substantial and significant time with the children. The mother’s position is that he should not have substantial and significant time with the children.
Section 65DAA(2) requires that if a parenting order provides that the parents are to have equal shared parental responsibility of the children, and the order I make does so provide, that I should consider whether the children spending substantial and significant time with a parent would be in their best interests and is reasonably practicable. If both these are answered in the affirmative I should consider making an order for the children to spend substantial and significant time with that parent.
I do not need to consider the second of these, that is the reasonably practicable criterion, as I am satisfied that it would not be in the best interests of the children for them to spend substantial and significant time with the husband.
The first reason for this is that it does not accord with the wishes of the children. I have already discussed this.
Further I am satisfied that if I acceded to the husband’s application it would very likely be counterproductive. [Y] has shown a reluctance to spend time with the husband in accordance with the existing orders of the court. I think it likely that if her time with the husband were expanded her resistance would escalate. I believe it unlikely that the wife could prevail upon her to spend the extended time with the husband. I am satisfied, as I have indicated, the arrangements proposed by the wife represent the outer limit of the time [Y] could be persuaded to spend with the husband. If orders were made requiring [Y] to spend more time with the husband I believe it likely that they would be counterproductive and might end up in [Y]’s becoming totally estranged from the husband.
This would have consequences in relation to [X]. He expressed concern about this when he spoke to Ms S. At paragraph 7.4 Ms S reported as follows:
[X], who had no issue about the current contact arrangement, was worried at the prospect that he might have to go to his dad’s on his own. In his case, this was quite plainly a concern that
Mr Palmer would revert to the abusive behaviour he had both witnessed and experienced previously.
I am concerned that if [Y] refused to spend time with the husband [X] might follow suit. I believe it would be counterproductive to attempt to improve the relationship between the husband and the children by increasing his time with them. I believe that such a course would be much more likely to damage that relationship.
For those reasons I have made orders in accordance with the wife’s minute.
On reviewing the orders sought by the wife I see that there are orders which were not adverted to by her counsel and which were not the subject of discussion. One of them involves the wife taking the children on holidays. I think it is reasonable that I accede to that application. I do not think that the husband’s relationship with the children would be assisted were they to be prevented from going on extended holidays because of the requirement to spend time with the husband.
The orders sought included permission to remove the children from Australia for a period of up to three weeks. I consider it unlikely in the extreme that the wife would keep the children overseas and I propose to make that order.
However, given that I am making orders which were not the subject of submissions by the husband at the hearing, I will give him the right to have the matter re-listed should he wish to make such submissions about those orders. I indicate however that my initial impression is that I should make those orders and that he would be at risk as to costs if he failed to convince me that my initial impression was misconceived.
Property matters
The parties’ applications
The husband proposes that he pay the wife $165,000 and that she transfer her interest in the home to him. In relation to superannuation he proposes that the superannuation accumulated by the parties during the period they lived together should be divided equally.
The wife agrees that the husband should keep the home but she seeks an order that he pay her $284,800. She proposed that the superannuation entitlements of the parties be equally divided.
Discussion
The Full Court of the Family Court of Australia has indicated that in property division cases a four-stage process should be adopted. The first stage involves making a finding as to the pool of property to be divided. The second stage involves a consideration of contributions made by or on behalf of the parties. If appropriate an alteration in property interests may be made on this basis. The third stage, for the purposes of this case, involves a consideration of such matters as set out in section 75(2) of the Family Law Act as may be applicable. Again, if appropriate, an alteration in the parties’ interests in property may be made on this basis. The fourth stage involves something of a “wood from the trees” approach in that one looks at the result derived from the second and third stages to determine if, overall, that result is just and equitable.
The pool
The parties are agreed that the Property S property is valued at $720,000. It is subject to a mortgage of $393,000 leaving an equity of $327,000.
The parties each own a motor vehicle. The husband’s is valued at $10,800 and the wife’s at $20,500.
The other chattels in possession of each of the parties have not been valued and I do not propose to take them into account.
The husband is in the [M] Superannuation Benefits Scheme and his interest in that Scheme valued in accordance with the Regulations, is $864,386. The wife has two accumulation schemes with the [P] Scheme which together are valued at $26,988.
Contributions
Apart from the matters that I will discuss I see no reason to treat the contributions of one party as being more significant than the contributions of the other.
At the commencement of the relationship each party had a motor vehicle. The husband had savings of about $10,000 and the wife had savings of about $5,000.
The husband is a [occupation omitted]. He joined [employer omitted] in 1982. In 2002 he received a retention allowance. This was a net amount of about $30,000. About $20,000 was used to buy shares and the balance was used for family purposes. It is reasonable to assume that he would not have received this retention benefit but for his length of [employment] and that part of it should be attributed to his pre-relationship service.
In 1993 the wife had her employment terminated and received a payment of some $79,000. She rolled over a part of this into superannuation which ended up as a net figure of $16,661. She later withdrew $5,000 from this fund. The balance of $60,308 was paid into a bank account and used for family purposes. The wife commenced that employment is 1982 and the same comments I made concerning the husband’s retention allowance apply. In her case almost all of her entitlements are referable to the period before cohabitation.
Ms Haughton who appeared for the wife submitted that I should make an adjustment in favour of the wife based on the principles set out in Kennon & Kennon (1997) FLC 92-757. Kennon was a case where the husband had been violent to the wife throughout the course of the marriage. The Full Court stated that, if by reason of a course of violent conduct perpetrated by one party to a marriage on another the victim’s contributions were made more arduous, a contribution based adjustment could be made in favour of the victim.
As I have indicated the wife maintains that the husband was violent towards her during the course of the marriage. She says that the husband’s conduct towards her was not confined to physical attacks. In paragraph 43 of her affidavit filed 15 March 2010 she says as follows:
I say that I have endured daily verbal assault from [Mr Palmer]. [Mr Palmer] would often complain about how the vertical blinds were turned in our house. Almost every day he would come home and re-arrange them in a way he felt they should be. He would then say to me “how stupid are you, you can’t even get the blinds right.” It was rare that a day would pass during our marriage that [Mr Palmer] would not call me an offensive name such as “boof-head”, “fucking stupid bitch”, “dumb”, “idiot”, “fat cow tick”, “pig” or swear at me, raise his voice in anger at me or say to me “you have not achieved what I expected of you” and/or “you failed to follow through”. [Mr Palmer] would often say “I wish I had married a more educated woman. Unless you earn at least one hundred thousand dollars a year you do not deserve a seat at the table of life.”
I have always doubted that what I will call the “Kennon” principle is good law. In one case I discussed my reservations as to this issue and declined to extend the principle to apply to only verbal violence. The husband appealed on other issues but unfortunately the wife did not cross appeal my refusal to make an adjustment in her favour by reason of the Kennon principle. If she had I would not have the problem I now face. In other cases I have not had to confront the issue as the degree of violence involved did not bring the principle into play. I believe however that in this case I must do so.
It might be thought that my opinion as to the Kennon principle is academic by reason of the doctrine of stare decisis. As I have indicated Kennon was a decision of the Full Court. However I am not bound by everything that the Full Court might say. I am only bound to apply ratio of the Court. In Kennon the analysis of the Full Court was obita dicta. This is because the trial judge found that the wife’s contributions were not made more arduous by reason of the husband’s violence. In the end result therefore no adjustment was made in her favour by reason of the Kennon principle. However there is dicta and there is dicta. One might, depending on the circumstances, have little hesitation in declining to follow dicta of the Full Court which is in the nature of a “throwaway line”. The discussion in Kennon however was reasoned and detailed. And, if all the judges who have sat on the Full Court over its history were to attend to a dinner with a seating plan based on eminence, the judges who comprised the Court in that case, Fogarty, Lindenmayer and Baker JJ, would be allocated places well above the salt. I appreciate therefore that refusing to follow such a Full Court authority is not a matter to be enterprised lightly or unadvisedly. I appreciate that others might properly and reasonably consider that, when it comes to a reasoned and unanimous decision of the Full Court, dicta or otherwise, a court in the position the Federal Magistrates Court occupies in the judicial hierarchy should follow it. This would appear to be the view taken by Altobelli FM in the decision I refer to in paragraph 99. However, with considerable reservations, that is not a course I propose to take.
The first thing to note is that the Kennon principle is anchored in the area of contributions. It is not based on section 75(2)(o).
The difficulty I have with the Kennon principle as a part of the contribution based division can be illustrated by reference to an anecdote recounted by the great American judge and jurist Oliver Wendell Holmes in his article The Path of the Law (10 Harv, LR Rev. 457 (1897)). In this story a legally unqualified Justice of the Peace in a rural area is hearing a claim for damages brought by a farmer against his neighbour. The farmer lent a churn to the neighbour who returned it in a damaged state. The Justice of the Peace dismissed the claim. He explained that he had searched all the authorities and whilst he could find cases where a neighbour who returned a damaged plough, or a cart, or any number of farm implements was found liable in damages he could find no case where damages were awarded for a broken churn.
The point of this story is that the law is not comprised of a “wilderness of single instances” and legal analysis should involve a much greater level of abstraction than was applied in this case. The question the Justice of the Peace should have asked himself, when being urged to break new ground and extend the liability of a gratuitous bailee to churns, was whether there is any jurisprudential basis for treating a damaged churn differently to a damaged plough. The answer of course is that there is not.
I return to the Kennon principle. Is that principle confined to instances of domestic violence if the violence makes the victim’s contributions more arduous? Or is it an example of a wider principle and akin to a minor premise in a syllogism? If there is a wider principle it would seem to me that it is to the effect that contributions are not necessarily to be measured in absolute terms but may be weighted by reference to the arduousness involved in making those contributions.
I shall now turn to a hypothetical example. Suppose we had a marriage where the wife was a white collar worker and the husband a coal miner and that each earned the same amount. For the purposes of this example I will assume that the husband worked in the type of mine, and was at the coalface doing the type of work, described by George Orwell in The Road to Wigan Pier. Is he to be given a contribution based adjustment in his favour by reason of the arduousness involved in his financial contributions?
The first thing to note is that I am unaware of any authority for the proposition that a person in a position of the husband in my hypothetical case could have a contribution based adjustment made in his favour. I raised this with the wife’s counsel who was unable to point me to any such case. I am unaware of any authority, apart from Kennon, and the cases which follow it, for the proposition that contributions are not necessarily to be measured in absolute terms but may be weighted according to the degree of arduousness involved in making those contributions.
Secondly there is no indication in the Act that contributions are to be weighted in this way.
I conclude therefore that there is no legal principle which would justify giving my coal miner husband a contribution based adjustment in his favour. The question now arises whether this hypothetical case involves a churn and Kennon a plough or whether there is a properly based jurisprudential distinction to be drawn between Kennon and my hypothetical case.
It seems to me that there are three bases on which I could distinguish my hypothetical coal miner case from Kennon. The first concerns the nature of the arduousness involved in each case. The arduousness in Kennon was not of the same nature as the arduousness in the coal miner’s case. In the coal miner’s case it was that the husband’s contributions were made in dirty uncomfortable, oppressive cramped and dangerous conditions and involved arduous physical labour. In the Kennon type case the arduousness is of a more subtle nature. It involves the contributions of the wife being made in circumstances where she would be always fearful and apprehensive. It might involve taking extra steps or precautions in the way that she performs her homemaking or parenting tasks. As example is found in this case. The wife describes in her affidavit an occasion where the husband was watching television while she prepared an evening meal. She says that the husband became angry because of the noise she was making in doing so and reacted violently.
This appears to me to be the most cogent reason for distinguishing the coal miner’s case from Kennon. The term “arduous” can have two meanings. The first is something that is difficult or requiring great exertion. The second can mean hard to endure, full of hardships, such as an arduous voyage. The life of a victim of domestic violence may be arduous in the second sense but not the first. However I am still unable to find any sound jurisprudential reason for making this distinction. And in any event my coal miner’s case fits both definitions of arduousness in that his work involved great exertion and also working in oppressive conditions. I cannot find any jurisprudential basis for distinguishing between the nature of the arduousness. To my way of thinking one is a plough and the other is a churn.
The second basis is that the arduousness involved in a Kennon type case is arduousness caused by the other party whereas the arduousness in my coal miner’s case is a simple fact associated with his employment. Again I cannot see any proper jurisprudential basis which would justify treating these in a different way.
The third basis is that the contributions in question in the hypothetical case were financial contributions and those in Kennon non financial contributions. I can see no logical difference.
It seems to me that one could only justify a Kennon adjustment if the fact that the husband’s violent conduct having made the wife’s non financial contributions more onerous her contributions are to be treated as having some special feature about them.
The concept of “special” or “outstanding” contributions is no stranger to section 79 jurisprudence. In some cases in the past courts have made a contribution based adjustment in favour of an entrepreneurial husband whose skills have brought great wealth to the family. These have been referred to as “big money cases.” In JEL and DDF (2001) FLC 93-075 at paragraph 128 the Full Court in dicta posited the possibility that non financial contributions could in some circumstances be in this category. The Court in that case at paragraph 136 also referred to Kennon as an example of contributions being given additional weight by reason of being special contributions However it is fair to say that, insofar as financial contributions are concerned, the tide appears to be running out in this respect and that the era of special contributions may well be at an end. This process appears to have been started by the House of Lords in White v White [2001] 1 All ER 1. The speeches of the Law Lords in that case were discussed and endorsed by the Full Court of the Family Court of Australia in Figgins and Figgins (2002) FLC 93-122. Encouraged by this case the English Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685 effectively put an end, in England at any rate, to the concept of special financial contributions. I think it likely that this case will be followed next time a big money case comes before the Full Court. In any event given what fell from the Full Court in Figgins I do not believe that I am required to follow the earlier cases and even if I were I am not required to expand the ratio in those cases, which concerned special financial contributions, to non financial contributions impacted upon by violence by reason of the dicta in JEL and DFF. What is sauce for the goose is sauce for the gander and if special financial contributions do not lead to an adjustment in favour of a husband then special non-financial contributions resulting from a husband’s violent behaviour making a wife’s non financial contributions more onerous should not lead to a contribution based adjustment in favour of the wife.[*]
[*] This is briefly mentioned, but not discussed in any detail, by Chisholm J in a 1994 article (which was referred to by the court in Kennon) Matrimonial Property Reform: Current Proposals and Issues. His comments were, of course, made before White and the other cases and he accepted the concept of outstanding contributions.
A question might also be asked how special is special? At what point does a high income earning husband’s financial contributions cancel out the battered wife’s special contributions. If the big money cases are any guide he would have to have made a fortune of some millions to have his contributions classified as special. This however does not appear to be the position of the trial judge in the case of S and S which I discuss in paragraphs 97 and 98 but I will not dilate on this further. The problems Kennon raises, to my mind at any rate, should by now I trust be apparent.
An interesting illustration of where the Kennon principle can lead is found in the decision of Coleman J in Cuneo & Cuneo and Cuneo [2006] FamCA 158. In that case his Honour made a Kennon adjustment by reason of the husband’s violent conduct but tempered the extent of the adjustment by reason of the fact that the husband’s violent propensities were a consequence of a war related psychological condition. In a discussion at paragraphs 259 to 267 his Honour described the conduct of the husband as “involuntary” or “largely involuntary” and “external to and beyond (his) control.” His Honour does not appear to be using the term “voluntary” in the sense that it is used in criminal law and his approach seems to me to open up issues of free will verses determinism that I am not qualified to discuss. The case also illustrates the plough verses churn aspects of the Kennon principle. As an example in some cases (a short marriage with no children is a typical example) the parties’ financial contributions will be a decisive factor. So in a case where the wife’s having a steady job as compared to the husband’s erratic employment history resulted in her making greater financial contributions she would expect an adjustment in her favour. Suppose the husband’s inability to hold down a job was a result of his irascible temperament and inability to fit into the workplace. I would have thought that this would be considered irrelevant. But suppose the husband’s temperament was a result of a war related psychological condition (or a brain injury or a difficult upbringing). Is this to be taken into account? Not in my experience.
Is the Kennon principle confined to case of domestic violence or does it extend to other forms of conduct? At page 84,294 in their joint judgment Fogarty and Lindenmayer JJ said
In the above formulation we have referred only to domestic violence……..but its application is not limited to this.
When considering this comment it might be useful to bear in mind the English case of Le Brogue v Le Brogue [1964] 3 All ER 464. In that case the wife petitioned for divorce on the ground of cruelty. It will be recalled that under the Australian Matrimonial Causes Act1959 cruelty was a ground for divorce and this reflected the English law. The conduct of the husband relied upon by the wife was that he was extremely taciturn or non confrontational and, whenever she wanted to “pick a bone” with him, he would simply shrug his shoulders and walk away. She became so frustrated by this conduct that she developed an ulcer. At first instance the trial judge granted a decree on the basis of cruelty. This was reversed by the Court of Appeal but the technical issue of whether such conduct can be classified as “cruelty” within the meaning of the then legislation is irrelevant to the present discussion. Suffice to say that it was the conduct of the husband that caused the wife to develop an ulcer and this may well have made her performance of her domestic duties more arduous. I daresay no one would contend in a similar case today that a husband should have his share of the property pool reduced by his unwillingness to engage in arguments with his wife. But the case may be relevant when contemplating the implications involved in expanding the Kennon principle to arduousness caused by conduct of the other party other than violence. But to confine it to physical violence raises the plough and churn problem.
It would seem to me to make more sense, if violence is to brought into account in the contribution based division, to reduce the weight to be given to the contributions of the perpetrator rather than to increase the weight to be given to the victim’s contributions.* In a hypothetical case where both parties earned comparable incomes and there was a violent husband it does not seem to me to be unreasonable to make a contribution based division in favour of the wife on the basis that the positive contributions made by the husband to the welfare of the family were cancelled out by the negative contribution to the welfare of the family caused by his violence. The wife would have an adjustment made in her favour because she made equal financial contributions and greater non financial contributions. But this would involve reviving the concept of negative contributions which has been disapproved by the Full Court.
* This is also touched on by Chisholm J in the article referred to in paragraph 88.
It needs to be noted however that such an approach would have a practical impact in only a limited number of cases. In the present case for all practical purposes the husband was the sole breadwinner. I would not have made a contribution based adjustment in favour of the wife even if he did nothing around the house and the wife had therefore made all the non financial contributions. To do so would be to quantatively compare financial and non financial contributions. This is impossible, or at least undesirable. The difficulties that would be caused by taking such an approach are easily illustrated. In this case the husband’s income is about $130,000 a year. Suppose I made a contribution based adjustment in favour of the wife on the basis of the husband having made no non financial contribution. This would be because I considered that her role as the sole homemaker and parent to be more significant that the husband’s role as sole breadwinner. But what would I do in an identical case where the husband’s income was $230,000 a year? There is a way in which financial and non financial contributions can be measured and compared but I suspect that in this case it would not be to the advantage of the wife. It was done, in my time in practice, to quantify a Griffith v Kerkemeyer* claim. It was to look at the rates organisations such as Dial-An-Angel charge for their services.
* (1977) 139 CLR 161.
In summary for the reasons that I have explained I am not bound by the dicta of the Court in Kennon and for the reasons I have given I decline to follow it. I believe that contributions are to be measured in absolute terms and not weighted by considerations of arduousness, whether caused by domestic violence or otherwise.
Before I leave this aspect of the case there are two matters I should address.
The first is that Kennon has been the subject of a subsequent decision of the Full Court in S & S [2003] FamCA 905. At paragraph 40 the Court said that “There is no doubt that domestic violence may be a relevant factor in assessing contribution.”
At first glance this emphatic statement might seem to put the issue beyond doubt. It made me pause to think. However it needs to be looked at in context. In that case the trial judge made a Kennon based adjustment in favour of the wife (although in the result this was cancelled out by post separation contributions by the husband. An illustration of the problems I have referred to earlier). The husband appealed. He did not contend that Kennon was bad law but contended that the evidence was insufficient to bring that principle into operation. The Full Court agreed and allowed the appeal. It can be seen therefore that the passage I have quoted is dicta, and moreover dicta concerning an issue not argued before the Court. Whilst I would not put it in the “throwaway line” category it is clearly a statement which is not binding on me.
The second is the decision of Altobelli FM in Kozovska and Kozovski [2009] FMCAfam 1014. In that case his Honour made a contribution based adjustment in favour of the wife under the Kennon principle. I am fortified in rejecting that principle by some comments made by his Honour in the course of his judgment. At paragraph 77 he said as follows:
Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary. Counsel for the wife submitted it should be 10%. I accept this figure as being appropriate under the circumstances of this case, but, quite frankly, if I had been asked to assess contribution at a higher figure, I would have. My real concern, however, is as to the artificiality of a “Kennon” type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory because no amount should compensate her for what she experienced at the hands of the husband. On a property pool of about $1,300,000, 10% is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.
I respectfully agree with all that his Honour has said. Further, in my opinion if domestic violence is to be taken into account in the section 79 exercise it is for the legislature, not the judiciary, to take the lead. To import issues of domestic violence into the section 79 issue is in reality an exercise in public policy.
Ms Haughton urged me to make a contribution based adjustment in favour of the wife by reason of her care of the child [Y]. [Y] has cerebral palsy and there is no doubt that this put, and still puts, significant burdens on the wife in travelling to medical appointments and otherwise managing her care.
I was not referred to any authority bearing on this issue and, insofar as contributions before separation are concerned, I am unaware of any that directly deal with the issue. The Full Court in JEL and DFF (2001) FLC 93-075 in dicta indicated that the care of a handicapped child could be a “special contribution” but whether or not that case is still good law after Figgins is open to question. Further I note the comments by Thorpe LJ in Lambert (which, as I have indicated, may have applied the coup de grace to JEL and DFF) where at paragraph 45 he said:
Examples cited of the mother who cares for a handicapped child seemed to me both theoretical and distasteful. Such sacrifice and achievements are the product of love and commitment and are not to be counted in cash.
In the result I decline to make a contribution based adjustment on this basis with respect to the period of cohabitation. Apart from Thorpe LJ’s comments the problem with doing so is that it involves comparing the husband’s greater financial contributions with the wife’s non financial contributions. I have already discussed the problems with this. And it raises other problems. Is a parent who has had the care of six children to have a greater adjustment made in her favour than a parent caring for three children?
An issue arises as to whether an adjustment should be made by reason of the presence in the parties’ household of the wife’s child [Z]. [Z] lived with the parties for a significant period during the relationship. The husband effectively contributed to his support as only a modest amount of child support, about $15 a week, was received from [Z]’s father. He also performed the role of stepfather.
The Full Court in Robb and Robb (1995) FLC 92-555 held that a step-parent’s financial contributions to a child of the other party and non-financial contributions as a step-parent in relation to that child can be taken into account in the contribution based division. When I raised the matter with Ms Haughton she pointed out to me that the Court made it clear that any such adjustment is not made under section 79(4)(a), (b) or (c) but under section 75(2)(o). I confess that I had not previously appreciated this. That section permits the Court to take into account “any other fact or circumstance that the justice of the case requires”. By reason of its general nature paragraph (o) gives me a wide discretion. In this case I decline to exercise it in favour of the husband. Both the wife and [Z] have alleged that [Z] was exposed to violence on the part of and suffered mistreatment at the hands of the husband. I accept that evidence. I believe that the justice of the case requires me to take this into account. I decline to make an adjustment in favour of the husband by reason of the presence of [Z] in the household.
I turn to post separation contributions.
Since separation the wife has had the care of the children. The husband has paid child support. According to his financial statement filed in July 2009 he was paying $315 a week. It is now $380 a week. He also says, and I accept his evidence, that he made payments which benefitted the wife of $7,797.
I turn now to the question of whether when assessing post separation contributions account should be taken of [Y]’s disabilities and all that flows from them. As I have indicated Ms Haughton submitted that account should be taken of this.
The only case of which I am aware where a parent’s post separation care of a disabled child was considered is the single judge decision of Mueller and Hegedues (1979) FLC 90-708. This case however is of no assistance. It was decided at a time when there was uncertainty as to whether post separation contributions as a parent could be taken into account under section 79(4)(c). The trial judge, Smithers J, directed his attention to section 75(2) and in particular paragraph (o). A change in the legislation and the Full Court case of Williams and Williams (1984) FLC 91-541 (affirmed by the High Court (1985) FLC 91-628) made it clear that such contributions are to be taken into account. I will proceed on the assumption that the matter is res integra.
Whilst I had little hesitation in rejecting the wife’s claim insofar as it concerned the period the parties lived together this is not so straightforward when I consider the period after separation. At this stage the issue of comparing the husband’s financial contributions, in the form of child support, with the financial and non financial contributions of the wife takes on a different aspect. During the relationship the husband was, largely, the sole breadwinner and the wife the primary parent. As I have indicated it is not possible to, or it is undesirable to, quantatively compare the two. But where the husband’s contributions are confined to child support, and as we know from published research more or less what it costs to maintain a child, one can more easily assess the wife’s financial contribution to maintaining the children and, when considering her non financial contributions I can sympathise with the submission that [Y]’s disabilities should be considered relevant. However in the end I adopt the comments of Thorpe LJ quoted above, and have regard to the other comments I have made, and do not take [Y]’s disabilities into account when considering the extent of the post separation contribution based adjustment.
Both children attend private schools and did so at the time of separation. The mother has paid the fees for those schools since separation.
When making a contribution based adjustment it is important to have regard to the dollar value of any adjustment The pool, excluding superannuation, totals $358,300 so a 10% adjustment would equate to about $36,000. But this is misleading. If a 10% adjustment were made in favour of a party there would be a 20% difference, or about $72,000, between the parties’ shares.
I find that contributions during the relationship favour the wife by reason of her lump sum contribution. However this was made a long time ago. Post separation contributions favour her also. I make a 3% adjustment in her favour.
Section 75(2) factors
Both parties are employed although the husband earns a significantly greater income than does the wife. He earns $138,000 a year and the wife $68,000 a year. It is a difference of $70,000 but after tax and Medicare levy I calculate that it is about $43,000. Nevertheless it is a significant imbalance.
The wife will continue to have the responsibility for the care for the children. This is to be recognised both in relation to its financial implications and also the non-financial aspects of their care. For the reasons indicated earlier I do not take into account [Y]’s disabilities except insofar as they have financial implications. In this respect the wife has to do a good deal of travelling taking her to and from medical appointments which includes occasional visits to Sydney. She receives a carer’s allowance of $50 a week but I would surprised if this entirely covered the additional costs occasioned by [Y]’s condition. The husband can be expected to continue to pay child support. I decline to speculate whether the wife will continue to have the whole of the burden of paying for the children’s private school fees. It is open to her to make an application that he contribute to these.
It is apparent that section 75(2) factors favour the wife. I make a 20% adjustment in her favour.
Superannuation
A significant part of the husband’s superannuation is referrable a period both before and after the relationship. It is the same with the wife’s superannuation. It will be recalled that a part of that superannuation involves monies from the cessation of her employment in 1993.
If both parties were in accumulation schemes I would be entitled to assume that by reason of his greater income the husband would accumulate more superannuation in the future than the wife. However he is in a defined benefits scheme and there is no evidence before me that his benefits will increase at a greater rate than will the wife’s. That assumes of course that some meaningful comparison can be made as to the quantum of the benefits of each scheme. I can infer that his military pension would increase if he were to be promoted but I am not willing to infer that this will happen. In the end result I decline to take into account the capacity of either of the parties to accumulate further superannuation.
I propose to make a split whereby the wife is to receive an amount equivalent to $260,000 of the husband’s entitlements.
Conclusion and Overview
The end result is that non-superannuation property is to be divided 27% to the husband and 73% to the wife. The pool is $328,300 and the wife’s share is $239,659. She has a car valued at $20,500. This means she is to receive $219,159 which I round off to $219,000.
I am satisfied that in all the circumstances that this division is appropriate.
In relation to superannuation the husband’s entitlements will be spit and the wife receive an amount calculated with a base figure of $260,000 or about 30% of that superannuation. I am satisfied that this is an appropriate adjustment.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Brewster FM
Date: 30 September 2010
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