PARNELL & PARNELL - [2015] FCCA 2929

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARNELL & PARNELL

[2015] FCCA 2929

Catchwords:
FAMILY LAW – Property application – 20 year marriage – modest pool of assets of $11,000.00 distributed at time of separation in 2007 with each party retaining their superannuation which was approximately equal – post separation husband receives inheritance – wife then files application alleging she has entitlement to the husband’s inheritance, wife alleges “waste” by the husband in relation to civil litigation dating back ten years and then abandons that claim during the trial, wife alleges violence by the husband to support a Kennon claim and abandons that claim – wife initially seeking considerable portion of the inheritance and reduces that claim during the trial – husband alleges sustained abuse by the wife to himself and a child – and his parents and sister for many years during the marriage – wife’s family violence and damage to property – smashing contents of house and husband’s car – wife’s threats to kill her husband and threats to burn her parents’ in law’s house – consideration of section 75 (2) factors – wife made no contribution to the husband’s inheritance – slight adjustment.

Legislation:

Family Law Act 1975, ss.75(2), 79(4)

Kennon v Kennon (1997) FLC 92-757
Bonnici v Bonnici (1992) FLC 92-272
Bevis & Bevis [2014] FamCAFC 147
Sinclair & Sinclair [2015] FamCA 388
Wall & Wall [2002] FamCA 257
Jarrott & Jarrott (No.2) [2012] FamCAFC 72
Mehmet and Mehment (1987) FLC 91-801
Norbis v Norbis [1986] HCA 17
Waters & Jurek (1995) FLC 92-635
Bevan & Bevan [2013] FamCAFC 116
Stanford & Stanford (2012) FLC 93-495

Applicant:

MS PARNELL

Respondent:

MR PARNELL

File Number:

SYC 5537 of 2011

Judgment of:

Judge Willis

Hearing dates:

1 – 3 June 2015

Date of Last Submission:

3 June 2015

Delivered at:

Cairns

Delivered on:

23 November 2015

REPRESENTATION

Solicitors for the Applicant:

O'Sullivan Legal

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Diamond Conway Lawyers

ORDERS

That within 60 days of the date of these Orders, the husband is to pay to the wife the sum of $37,500.00.
Except as specifically provided for by an Order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the wife as at the date of the making of these Orders.
Except as specifically provided for by any Order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) of whatsoever nature and kind in the possession or name of the Husband as at the date of the making of these Orders.
The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Husband.
The Wife shall indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Wife.
In the event either party refuses or neglects to comply with any provision of this Order a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders.

Costs

Submissions are to be filed and served in relation to any costs application within 21 days of today’s date. Submissions ought to address the relevant provisions of the Act, and include a draft order with reference to the relevant scale or otherwise explaining the quantum.
Any submission in response to a costs application is to be filed and served 21 days from being served, with such submissions addressing the relevant sections of the Act, and addressing the quantum with reference to the scale or otherwise, accompanied by a draft order.
Unless the court determines otherwise or a party makes a request for a further appearance to be listed to hear the costs application, the costs application will proceed on the papers.

IT IS NOTED that publication of this judgment under the pseudonym Parnell & Parnell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5537 of 2011

MS PARNELL

Applicant

And

MR PARNELL

Respondent

REASONS FOR JUDGMENT

This is an application for a property settlement made by the applicant wife, Ms Parnell (the wife). The respondent husband is Mr Parnell (the husband). Each of the parties has been represented at the trial in this matter. Mr Millar of Counsel has appeared for the respondent husband and Mr O’Sullivan, a solicitor advocate, has appeared for the applicant wife.
Each of the parties has provided a case outline and indicated on those case outlines the documents that they rely upon. In terms of the applicant, that list was amended several times during the trial as various parts of the applicant’s application were abandoned. Ultimately, the material left is an amended application filed on 25 November 2014, a trial affidavit filed on 12 November 2014, a further affidavit of the wife filed on 22 May 2015, an amended financial statement filed on 29 May 2015, supporting evidence of the eldest son of the parties, X, whose affidavit was filed on 12 November 2015, and an affidavit of Z, a son of the wife from a former relationship who was six years old at the time the parties commenced cohabitation. Each of the parties has provided not only a case outline and by the end of the trial, the parties relied on a further amended joint balance sheet.
The wife is seeking orders set out in a minute of orders sought attached to the written submissions. The wife seeks payment of the sum of $106,830.00, such payment to be made to the wife’s lawyers; an order that the wife pay the husband $2,400.00; a splitting order equivalent to 100% of the husband’s superannuation; an order that she retain her own superannuation, and other standard orders, including that costs be reserved, pending judgment.
The amended response of the husband sets out the orders sought, which are that the final orders (1), (2) and (3) sought by the applicant wife in her amended initiating application filed on 25 November 2014 be dismissed and that the applicant wife pay the respondent’s costs of these proceedings. Material relied upon by the husband is set out in his case outline at section B, under the subheading “History”.

Background

At the time of trial the wife was aged 54 and the husband was about to turn 54 years of age. The parties married on (omitted) 1988 and separated in September 2007, some 8 years ago. This is a relationship of 20 years, noting that the parties commenced living together in September 1987. There are two children of the marriage, X born on (omitted) 1989 and Y born on (omitted) 1990.
The wife also had a child from her first marriage, Z born (omitted) 1980, and he lived with the husband and wife and, when they were born, his half-brothers, though there were periods when he came and went from that family home to his biological father who lives in (country omitted). It seems that Z was living and being raised in the household of the husband and wife from the age of six for a period of approximately nine years, allowing for a short interval in which he returned to live in (country omitted) with his biological father.
During the marriage, the parties have each taken on their respective roles of child-rearing or working, or both, or working part-time. There have been periods during the marriage where either of the parties may have not been working or studying. Each of the parties has had various health issues during the marriage, significantly the wife was admitted to the (omitted) Mental Health Unit and then (omitted) Hospital just prior to separation in 2007 and the husband has had serious ill health having been diagnosed with bowel cancer in (omitted) 2000 and had surgery following that diagnosis. He remains in remission. He had a stroke in 2011.
There are allegations by the husband that he was subjected to incidents of family violence perpetrated upon him by the wife, and he seeks to rely upon a Kennon argument in relation to the difficulty in his making contributions given what he says he was subjected to on and off throughout the marriage. The wife commenced the hearing also seeking an uplift in her percentage due to family violence allegedly perpetrated upon her by the husband. That was abandoned during the trial.
It seems to be agreed that due to a decision of the parties to borrow a significant amount of money in 2003 - around $400,000.00 to develop a property that they owned at Property M into two separate apartments -that this project ultimately resulted in a significant financial loss for the parties. What seemed like a good idea at the time soured when the parties unexpectedly found themselves in a building dispute in relation to the Property M property and the builder. That dispute was determined by judgment of the Consumer, Trader and Tenancy Tribunal (“the CTTT”) and the parties were ordered to pay the builder $13,363.00 plus 75% of the legal costs of the builder. Their own cross claim was unsuccessful and they were ordered to pay legal costs associated with that claim. The decision of the Tribunal is attached to the husband’s material. The wife commenced this hearing seeking to rehash the decision of the CTTT, a decision made 10 years earlier on 1 March 2005, to demonstrate that it was all the husband’s fault and that she did not ever agree to commencing the litigation and she claimed $110,000.00 as a waste.
The husband explained that they were not in a position to pay the builder either for the determination amount or costs against them as awarded in the CTTT proceedings. As a result the builder filed a creditor’s petition in what was then the Federal Magistrates Court of Australia, following which he and the wife entered into an agreement with the builder to pay him $90,000.00 plus interest at the rate of 10% secured against the title of the Property M property.
Ultimately, the Property M property itself was sold not without some difficulty, and at a time when the wife had taken up occupation of one of the units. Disputes arose with the wife refusing the husband access to complete work that he was required to do pursuant to Council requirements. In any event, after the sale there was a very modest amount of money left as profit, given their hefty borrowings. There is reference in the husband’s material to how all of the sale proceeds of the Property M funds were distributed. At paragraph 91 the husband details that the Property M property was eventually sold in its existing condition with settlement taking place on 7 November 2008 and the sale proceeds were $850,000.00. After paying out the mortgage, which by that stage had increased to $670,000.00, solicitors’ fees in relation to the legal action against the builder, a sum of money owing to (omitted), commissions and sale expenses and the costs surrounding efforts to prevent the husband being declared bankrupt during the midst of this dispute and during which time significant further borrowings were made, only $11,000.00 remained as seen in the conveyancing solicitor’s letter annexed of 21 November 2008.[1]
[1] Annexure P-28, pages 98-102.
Of the $11,000.00 the husband gave to the wife $7,000.00 for her sole use. The husband received $4,000.00 however he paid $3,000.00 out towards the remaining bankruptcy costs, such costs incurred during the marriage. At that time after the distribution there were no other assets except their household furniture and effects and their respective and modest superannuation funds which appear now to be worth around $50,608.00 for the husband and $54,000.00 for the wife, a total of $105,008.00. Their separation date was 29 September 2007.
The husband was subsequently pursued for a credit card debt incurred during the marriage, and as recently as November 2014, he was receiving demands for payment of a debt around $14,800.00. It seems he has been servicing that debt which is in his name.
But for a subsequent event there would effectively be no property left to divide.
The parties are approximately the same age, 54. The wife is in good health and is in employment as an (occupation omitted). The husband is also in employment as a (occupation omitted). Each of them have steady work.
In (omitted) 2008 however, following the death of the husband’s own father, on (omitted) 2007, the husband and his sister received their inheritance from their parents. Sadly, their mother had also died a couple of years earlier. Probate was granted of the husband’s father’s estate on (omitted) 2008, 6 months after separation. The husband and his sister were left equal shares in their Father’s estate. It seems that primarily consisted of a property which was sold and the proceeds divided equally.
The husband’s sister Ms L, gave evidence in support of the husband and was cross-examined at the trial. There has been much evidence of the abusive and insulting language used by the wife towards the husband and his sister, and of her intrusive behaviour happening around the death of their father and of abuse directed to the husband and his sister.
The husband’s inheritance has triggered the wife’s interest in pursuing a property division and I note the flurry of applications filed by the wife, seeking to restrain the husband from spending his inheritance. The value of the husband’s share of his inheritance of approximately $770,000.00[2] is reflected in the joint balance sheet, after the deduction of some costs.
[2] Affidavit of Mr Parnell filed 22.10.14.
The bulk of the husband’s inheritance is shown on the balance sheet by two assets being number 1 and number 2, namely, a property in Queensland valued at $425,000.00 and a sum in an (omitted) bank account in the name of the husband or his solicitor in the sum of $141,718.00. The husband’s inheritance is reflected in the purchase by him of the Audi motor vehicle at item number 7 valued at $18,000.00. It is also reflected in a payment of $25,000.00 post separation to the wife pursuant to Orders of Judge Baumann. The sum was by way of partial property settlement, such payment to be characterised by the trial judge at the final hearing. This is shown at item number 9.
The wife commenced the trial seeking orders that she be paid an amount of cash, initially $192,500.00 of the husband’s inheritance. The wife also sought to retain the sum of $25,000.00 being an interim payment made to her pursuant to orders of Judge Baumann, plus retain all her own superannuation of approximately $54,000.00 and have 100% of the husband’s superannuation which is valued at $50,605.00, a total of approximately $104,000.00. That claim, as set out in the amended application filed on 25 November 2014, is therefore for $321,500.00 out of $721,441.00. This excluded monies owed by the wife to the husband allegedly pursuant to a court order in the State jurisdiction in the sum of $2,400.00. The wife was charged and convicted of intentionally or recklessly damaging property in the Kogarah Court house. This was property of the husband, namely smashing the windscreens of his car.
At the commencement of this trial the wife was running her own Kennon argument, based on her allegations about the husband’s treatment of her during the marriage.
That additional amount brings the wife’s claim to $431,500.00 or 59.8% of the property pool which consisted as per the further amended joint balance sheet of total net assets, of $721,441.00 on the wife’s case (and $2,400.00 less on the husband’s case) which mostly comprised the husband’s post separation inheritance.
The wife abandoned the argument relating to the civil litigation and an add back of $110,000.00 regarding the construction/waste dispute issue during the course of the trial.
The wife’s case has been conducted on the basis that she has made contributions towards the husband’s inheritance, and further that this property division should be approached as a global pool in order to “properly acknowledge her parenting contributions.” It is the wife’s position that her evidence should be accepted over the husband’s and that she denies that she has ever harassed or engaged in violent behaviour against the husband as alleged by him. Therefore she objects to his seeking an order which includes an uplift for a Kennon argument, which the respondent contends ought to be about 10%. The wife abandoned her own Kennon argument during the trial.
The wife continues to seek orders that she retain all of the husband’s superannuation as well as 100% of her own superannuation, in all a total of $105,800.00 in superannuation; that in addition she be paid a cash payment of $106,830.00 by the husband (with such payment to be made to her solicitors) and she seeks to retain the $25,000.00 already paid to her by the husband. The wife has also been paid the amount of $7,000.00 as part of their final property distribution, so the total amount received by her would be $244,630.00.
As can be seen from the history of this matter, there were a variety of incidents involving violence against property during the relationship, as alleged by the husband against the wife. The wife admits that she deliberately smashed the husband’s windscreens. An order was made in a state court for the wife to pay $2,400.00 pursuant to a finding of reckless damage in the state court. The husband in his material refers to another incident in which the wife destroyed many belongings in the house just prior to her being removed and placed into involuntary admission to a psychiatric unit at the time in (omitted) 2007, just prior to separation she was discharged after a short stay. The wife also admits that she ran over a police officer’s foot prior to being charged with various other offences by the police during a particularly volatile episode between the husband and wife. I will come to the other incidents of family violence later in these reasons.
It is the husband’s position that his inheritance received post separation ought not to be included in a global pool but rather, whilst not being quarantined, it be treated as a separate pool. Counsel for the father, Mr Millar relied on case law such as Bonnici and Bonnici (1992) FLC 92-272, a case before the Full Court in which the trial judge had taken a global approach to a late inheritance.
Their Honours stated:
In a case such as this, we think the global approach, taken by his Honour, presents considerable difficulties. If the matter had been approached upon an asset by asset basis, we think that the task of his Honour and this Court would have been a simpler one. To approach the matter globally as his Honour did, in circumstances where the wife had clearly made no contribution to a major asset, must of necessity have involved a greater weighting of her contribution than that of equality to the assets to which she did contribute.
The husband submits that the wife has made no contributions towards the inheritance received after the parties separated, and to treat the inheritance as suggested by the applicant as part of a one property pool, distorts the contribution argument. Mr Millar contends that the wife ought to retain the $25,000.00 part payment made to her pursuant to the orders of Judge Baumann, and retain her own super of $54,000.00 together with the funds of the earlier final distribution of $7,000.00. Apart from that, her application seeking 100% of the husband’s superannuation and a payment of cash from the inheritance ought to be dismissed.

The Law

In this matter I am required to follow the approach to property division set out in various authorities and described as a four step process in cases such as C & C (2005) 33 Fam LR 414; In the Marriage of Hickey (2003) FLC 93-143 and Ferraro and Ferraro (1993) FLC 92-335. The four step approach is to first determine the pool of assets and liabilities, then evaluate each of the parties’ financial and non-financial contributions during the marriage and post separation, determine if that contribution figure requires adjustment in light of the relevant section 75(2) factors and finally to consider whether the proposed result is just and equitable in all of the circumstances having regard to the actual result in real terms.

As the Full Court (Bryant, CJ, Finn & Thackray JJ) noted in Bevan & Bevan [2013] FamCAFC 116 at [65] although the High Court in Stanford & Stanford (2012) FLC 93-495 did “not disapprove the four step process, we accept it was not approved either”. However it is clear that after an identification of the existing property interests (as determined by common law and equity), the Court is required to consider under s79(2) whether it is just and equitable to make an order at all.
As the High Court said in Stanford at [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 relationships. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also bought to an end. Hence it will be just and equitable that the court make a property settlement order….”
I find, based on the pool of assets that it is just and equitable in this case to make a property adjustment order.
I have been referred to case law in respect of the various arguments and in particular to the position in relation to a late inheritance and inheritances received after separation. Each of the parties has referred me to Bonnici. In this respect I note that the Full Court in that matter concluded that the inheritance in that matter came into the parties’ hands during the subsistence of the relationship, which is not the case in the matter before me. I note also that their Honours concluded that a property does not fall into a protected category merely because it is an inheritance and significantly, that “the other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances.”
Mr O’Sullivan refers me to Bevis & Bevis (2014) FamCAFC 147 and Sinclair & Sinclair [2015] FamCA 388. Mr Millar refers me also to Full Court decision of Wall & Wall [2002] FamCA 257. He also refers me to Jarrott & Jarrott (No.2) [2012] FamCAFC 72, a Full Court decision issued on 4 June 2012.
Mr Millar of Counsel also referred me to Mehmet and Mehmet (No.2) (1987) FLC 91-801 in relation to the issue of an ex-nuptial child and the manner in which I should take into account those contributions by the husband in relation to the child Z, namely that it should be done as a 75(2)(e)(o) factor and not a 79(4)(c) factor
The agreed assets are set out in the further amended joint balance sheet, being a list of assets and liabilities. The total net assets are either $721,441.00 on the wife’s case as opposed to the husband’s net total of assets $719,041.00, which does include an amount of $2,400.00 being owed by the wife to the husband from an order in the Kogarah state court.
The draft orders sought by Mr O’Sullivan for the wife include an order that within 21 days the wife pay to the husband $2,400.00 which seems to be a concession that the wife owes that money to the husband, as alleged by the husband, as opposed to the wife’s evidence that the Magistrate dismissed the Order for costs. Mr O’Sullivan informed the Court that, as an officer of the Court, he wished to place on record that there is no evidence he is aware of that would suggest the costs order against the wife had been dismissed, as the wife indicated to the Court.

The Witnesses

In terms of the witnesses, the wife gave evidence and was cross-examined along with her son Z and her son X. For the husband, he gave evidence and was cross-examined along with his sister, Ms L, and his son Y.
It is most unfortunate indeed that these parties’ extremely acrimonious breakdown has led to the involvement of all of their sons and the son of the wife from a previous relationship.

The Wife

It was apparent from the moment the wife entered the witness box and commenced answering questions, through both her conduct and her answers, that she is consumed by revenge or anger directed towards the husband. Given that the parties separated in 2007, now eight years ago, it was striking to see the level of hostility, overt at times in the courtroom, shown through calling out at various witnesses, interjecting when she was sitting in the gallery, ticking off Counsel for not looking her in the eye, and generally acting in an uncontrolled fashion. This conduct continued to the point where, after three warnings from myself to cease interjecting, calling out, mocking the other witnesses’ evidence, and having her sit away from the other witnesses, I warned the wife that given her continued behaviour, I would have her removed from the courtroom and placed in another courtroom with a phone on mute, so she could hear the balance of the proceedings but not disrupt them any further.
The wife was completely unregulated and uncontrolled in her responses. She was unable to contain her answers to questions from Counsel without adding gratuitous insults and commentary about what the husband had allegedly done to her during the marriage or about any topic she wanted to ventilate. She wanted to make further and continuing allegations about the husband whilst she sat in the witness box, and when asked to admit or deny violence which the husband alleged against the wife, she would deny all violence and say, “That is what he did to me.”
The wife showed not the least respect to Counsel, the Court, the husband or his witnesses. Instead she exhibited extreme anger and confidence. She was accusatory and unable to resist any and all opportunities to give self‑serving speeches about the husband, to recite the evidence of others and explain why it was wrong, or to answer questions with questions.
When asked about whether she had damaged and smashed items in the former matrimonial home, the wife could not answer until she knew a precise date. I would have expected, when asked had she smashed up the belongings in the house, that an answer of yes or no could have been offered rather than, “What date are you talking about?” She wished to debate and demonstrate that she could not have damaged the house because she was in a psychiatric ward, and then accused Counsel of deliberately trying to confuse her. There was no attempt by Counsel to confuse her, rather, Mr Millar continued on patiently in the face of a barrage of avoidance strategies by the wife. She had somewhat of a preoccupation with dates as opposed to focusing on facts and events, and did not wish to answer simply whether events had occurred.
In complete contrast to her overbearing and intimidating manner displayed in the witness box, her refusal to answer questions and her insistence on having the last word in every exchange, whether it was with the Bench or Counsel, the wife when asked about her parents-in-law took on an obviously contrived appearance, suddenly adopting a different persona completely, saying with a soft voice that she adored her parents-in-law and she had a very close relationship with them.
I accept for reasons explained elsewhere the level of hostility and violence perpetrated upon the husband by the wife as alleged by the husband. I also accept that there had been intimidation by the wife against the husband’s sister (the other beneficiary, Ms L). Ms L has a two year domestic violence order against the wife for her overbearing and intimidating behaviour. It therefore seems to me to be highly unlikely that, notwithstanding all of this overt hostility by the wife, the parents of both the husband and Ms L would, as the wife alleges, have an extremely close relationship with her. It simply is illogical to make such a connection particularly in the context of what was a tight and loving family circle with the father, his sister and their parents, who were (nationality omitted) migrants to Australia over 40 years ago. It is clear from the evidence of Ms L that she was a dutiful daughter who devoted herself to the care of her parents. It is also clear that the family unit, minus the wife, were a close family who saw each other regularly, and as Ms L explained, for most of her life she went to her parents for Sunday dinner, along with many other social engagements. The husband usually went alone, making excuses for the wife.
In any event, having watched the wife give her evidence, I am well satisfied, as submitted by Mr Millar, that the behaviour which the husband has complained about and which has been directed at him for many years was overtly on display by the wife during her time both in and out of the witness box.
I am satisfied and accept the submission that, as a witness, the wife was argumentative, that questions were used as platforms for her to make speeches, that her answers were not responsive, and that several requests were made from Counsel and by the Court for her to be responsive, to which the wife showed utter disregard. The wife was quite determined not to engage in the process and to attempt to adopt a contrived presentation in order to suit her case in regards to her alleged close relationship with her former in-laws. The thrust of her case was that she had a very close relationship with the husband’s parents and that she cared for her former parents-in-law, and that this entitles her to a percentage of the inheritance. I do not accept that the wife “contributed” to the inheritance, nor do I accept that she had a loving relationship with her parents in-law or that she was heavily involved in the care of her former parents in-law. Quite the opposite is my strong impression, particularly after hearing the evidence of Ms L.
The wife’s manner in the witness box on the second morning of trial was in stark contrast to the first day. Initially on the second day, the wife presented as if she was affected by something, be it sedatives or some other substance. She was slow and non-responsive, holding her head at odd angles and spending lengthy periods wide eyed looking around the ceiling of the court room, whilst not answering questions and appearing to be “spaced out”. When questioned about whether she was under the influence of any substances, the wife denied that this was so. That left me therefore with a strong impression that she was deliberately being a very uncooperative witness, and once again, her presentation was contrived. The wife could not maintain this demeanour for too long and eventually reverted to her angry self.
At times under cross examination, the wife’s evidence was just a stream of consciousness and her challenges to the propositions put to her were implausible. Her denials of allegations of her committing acts of domestic violence were most unconvincing and the wife showed no contrition for her violent conduct. Quite the reverse, she justified it. The wife justified her disturbing behaviour of smashing two windscreens of the husband’s car (whilst all the children were home) on the basis that this action was her way of telling the husband that she did not approve of him giving drugs to their children. There is not a shred of acceptable evidence that the father gave illegal drugs to their children. The wife also accepted that she ran over a policeman’s foot whilst driving away from the police, in the midst of another conflicted incident with the husband, at which the police attended.
The wife alleges that the husband committed acts of violence against her. This included when he allegedly injured her by pulling back one of her fingers, as referred to elsewhere in this judgment. I do not accept the version of events given by the wife. Not only did she fail to tell the specialist or the hospital that the husband caused this injury to her, I simply do not accept her version of events, which has varied from that in her material to other versions of this event she has given. I do not accept any of her allegations of violence against the husband.
When the wife was cross-examined about the husband not being given access to their duplex to finish work, she said that the husband had keys and he could get in. When pressed by Counsel on this issue, it was suggested that in fact the wife had changed the locks and the husband could not get in. Only then did the wife change her testimony and admit to changing the locks but this was after she initially misleadingly said that the husband had changed the locks.
When pressed about her changing the locks she said, “I gave the keys to the real estate,” and when she was challenged by Counsel, saying, “But you didn’t give any to the husband,” she became very angry and said, “Why would I give him access? Now I am angry. How ridiculous. I am not going to give someone like that, that is intimidating and harassing me, the keys. This is rubbish.”
The wife was challenged about her evidence that she had paid the premiums on the duplex and said, in fact, that she had not paid the insurance premiums because the duplex was not insured. A few moments later, in further questioning, she said she did arrange the insurance on the duplex. When asked how much insurance she organised, she was unable to recall. When asked what was the value of the mortgage payments she allegedly made, she was unable to recall. Similarly, when asked who were the people sitting with the husband when she allegedly saw him giving drugs and alcohol to children, the wife struggled to recall names of those people.

Wife’s allegations of violence by the husband – her Kennon claim

The wife’s allegation that the husband was violent to her by pouring hot water over her are not borne out by the evidence at the time. Nor is the allegation that she sustained a broken finger by way of an assault from the husband. The wife’s evidence in relation to these two issues is that when she reported the hot water burn (as seen in the hospital records) that she went along with what the husband said at the time. She says: “I never disclosed to anyone the cause of my injury and went along with Mr Parnell’s versions of events that the kettle had spilt.”
The hospital records indicate that the left side of the wife’s face had been burnt by hot water. The records show she had reddened skin on the left side of her face, there was nil blistering noted, the wife complained of severe pain. The husband took her to hospital within fifteen minutes of the accident.[3]
[3] Exhibit B.
I have heard the husband’s version of events that the wife became angry and slammed the kettle during the process of being angry. I accept that this is what happened. I reject the suggestion of the wife that the husband poured hot water on to her deliberately. I note that the wife did not ever tell anyone at the hospital that she had had hot water poured on her by the husband. I regard that allegation as being recently invented for strategic purposes. Similarly, the wife reports that she sustained a broken finger and alleges it was due to the husband’s conduct. The wife said in her material at paragraph 83, that she “sustained a broken finger in 1992” from her injury.
The report from the specialist surgeon spoke of the “interesting finger injury which consisted of an avulsion fracture.” The wife has told others that several of her fingers were pulled back by the husband. All of the wife’s versions of events regarding alleged family violence are vague, inconsistent, and frankly implausible. Again, she admits that she has not previously told anyone that the injury occurred as she now says.
As I have said earlier, there is nothing about the presentation or recounting of evidence by the wife that suggests the wife has been or is in fear of the husband. To the contrary, I had a strong impression that the wife is a very threatening and volatile woman who has caused a lot of disharmony, grief, conflict, fear and intimidation toward the husband and, at times, the children of the marriage and the husband’s sister.
The wife took great umbrage at the suggestion that she had lunged towards the husband after telling him that, she was going to “fucking kill him.” I accept that this event occurred. The wife took glee in taking the opportunity to denigrate the husband’s girlfriend in Court when that issue was raised, calling her a “junkie” and someone who had “been admitted to a mental health unit” and that the husband still uses her address. The wife did this very confidently in a cavalier fashion.
It is an unfortunate and remarkable coincidence that the husband and those associated with the husband, such as his sister, have been subjected to damage to their property in their homes, post separation. Subsequent to their separation, the husband’s clothes have been cut up on two or three occasions.
The husband’s sister gave evidence of seeing the evidence of the desecration of her parents’ gravesite, of rosary beads left at the gravesite being thrown into her yard. The wife was seen at the house just prior to this event. I am satisfied on the balance of probabilities that the wife has been responsible for that desecration and for the ongoing intimidation and harassment of the husband and at times, the sister.
I accept the evidence of Ms L regarding the intrusive and inappropriate phone calls from the wife regarding her parent’s will, and what was to occur with her mother’s burial and other issues that were the business only of Ms L and the husband. I accept the description of Ms L of the disgraceful scene caused by the wife on the day of the father’s funeral in the presence of friends and family at the family home. I accept the applicant berated the husband for showing affection and care to his sister and that the wife said, “I hate the fucking bitch. I told you I would make a scene if you spoke to her.” I accept that the wife began hitting the husband, screamed at him and started screaming at Ms L. I accept that she proceeded to kick her late father-in-law’s car. This is hardly the conduct of a person who says she had a close and loving relationship with both her mother and father-in-law.
As referred to elsewhere, during the course of this trial, the wife abandoned what she described as her Kennon claim, which in my view was raised in response to the father’s evidence of her own conduct. Her evidence was unconvincing and had a strong flavour of being created to further her case. Similarly, during the course of this trial, after many hours were spent doing objections to evidence, the wife abandoned what she called her “construction claim”. This claim was always fatally flawed. The idea that this Court would, ten years later, second-guess the CTTT tribunal is frankly absurd. Because the outcome of their hard-fought litigation was unsuccessful, to now suggest in the property proceedings, that somehow the husband would have been deliberately negligent and reckless, as is required to substantiate a wastage case, frankly defies logic. As I said to Mr O’Sullivan during the course of the trial, there would be absolutely no sensible reason why back in 2003 with the husband paying lawyers and struggling to pay their significant borrowings, that the husband would deliberately set out to sabotage and be reckless in their own litigation. I am quite satisfied that the wife has deliberately manufactured issues to agitate in this trial, which are entirely without merit, but which have added to the time taken to hear this matter, expense and preparation for the husband of this litigation. Several issues were abandoned, as I have said, during the trial, which in my view, had no reasonable prospect of success and which ought not have been raised.

Unfortunately the wife was an exceptionally poor witness. I observed her hostility to the husband and his family in the presence of the Court room. I understand why they are fearful of the wife, they have valid reasons for this fear.
Wherever the wife’s testimony is in conflict with the husband’s, in the absence of any independent evidence, I prefer the evidence of the husband.

Z gave evidence and was cross examined. It was clear he was in Court to support his mother’s allegations. I found his evidence of little value.

Again, I found the evidence of this witness of little value. It was very unfortunate that these two sons were required to give evidence.

The Husband

The husband was at all times cooperative. He gave answers in a measured fashion. He had a reasonable recall, though not specifically for the date of the death of his father. Once the death certificate was produced, it was conceded by him that the date he had in his affidavit of the death of his father was not (omitted) 2007, but rather (omitted) 2007. There was no dishonesty involved in this evidence and nothing turns on this error.
He presented as having had a long and difficult relationship with the wife. I was satisfied that he had been a victim of family violence perpetrated by the wife in various incidents throughout the marriage.
Turning then to the husband’s assertion that his contributions were more arduous because of the wife’s violence and abuse towards him in the marriage, I accept that there have been various incidents, as set out in the husband’s material, in which he has been the subject of abuse by the wife.
The husband describes an incident in March 1987, whilst the parties were living together prior to marriage, that happened between his own mother and the wife, which was precipitated by the wife during an argument with the husband, yelling at him and punching him in the face. He says at paragraph 11, “At that point, my mother came up to Ms Parnell and grabbed her by the hair yelling, ‘Don’t you hit my son.”
As a result of that, the husband’s mother dragged the wife to the floor. His own father then ran and grabbed his mother while he grabbed his wife and tried to separate them all. It seems that after that incident the wife and his mother did not speak to each other for many months.
The husband says, and I accept, that his mother throughout the marriage avoided any contact with the wife, and that he avoided taking his wife to the parents’ house for family functions such as birthdays, Easter or Christmas, or Sunday dinners, and would often say that he had to work or he could not bring his wife.
He said that after his sister got married, she and her husband and children had dinner at his parents’ house every Sunday night and that he occasionally joined them. However, he avoided taking his wife as she did not get on with his sister. They did not have a good relationship and he feared that his wife would become abusive towards either his parents or his sister.
He then describes an incident where he was driving a vehicle at (omitted), that they had both been drinking; that his wife became aggressive, she started yelling in a car park; that when he drove out of the car park with the wife in the car, she hit the husband in the side of the head and continued to do so while they were driving.
Ultimately, the police became involved. The wife jumped out of the vehicle and attacked the husband in the process of grabbing the keys when a police vehicle pulled over and dragged the wife away from the husband. He says there were two police officers, one who took him to the back of the police vehicle and asked him to do a breath test, which he refused to take, and whilst the other police officer was asking the wife to take a breath test, the wife screamed out to the police, “No, I haven’t. Fuck off. Leave me alone.”
She then jumped into the vehicle, did a U-turn on the highway and drove off. As she did so, she has run over the police officer’s foot who immediately screamed out, “She ran over my foot”. The wife admits that this occurred and that she drove over the police officer’s foot. After the wife drove off, there was a loud crash in the direction of where the wife had driven off to, and the vehicle rolled over and rested on its roof.
Eventually the police and ambulance arrived and after being cleared by the ambulance officers, the wife was taken to the police station and charged with assaulting police, resisting arrest, driving under the influence of alcohol, driving in a dangerous manner and damage to public property. The wife was convicted of all of the charges and disqualified from driving.
The husband gave evidence of sustained abuse by the wife, both physical and verbal, between 1995 and 1998. For example the very aggressive incident by the wife who had been drinking from lunchtime to 5:00pm. The wife has also concluded that his parents were trying to take their children away from them. It is conceded that the paternal grandparents assisted regularly with the care of the children whilst the parties worked. The wife ended up, after some very hostile exchanges, collapsed with a bottle of vodka in the granny flat. An ambulance was called. The wife was treated for an overdose of alcohol and sleeping tablets, and she was later transferred to the (omitted) Psychiatric Unit. The wife refused to remain in hospital and discharged herself.
After this incident, the husband says that the wife reduced her drinking, but problems with her aggressive behaviour continued. He explained that during the years 1995 to 1998, he was often verbally abused and in the course of discussions, if the wife did not agree with him, she would be punching or slapping him across the face, whilst at the same time verbally abusing him in language which was extremely crude and which he said occurred in front of the children. She would often call him “You fucking wog” or “You fucking cunt wog.”
In 1996, the husband says he started having difficulty in sleeping. He was agitated and nervous, particularly when his wife was around or when there were raised voices. He began to feel nauseous when his wife raised her voice and was on edge as there would be likely another argument or the wife would decide to hit him again. He says that after each episode with his wife screaming at him and being abusive verbally and physically, he had to continue going to work.
In terms of the other incidents relied on and to pursue a Kennon claim, the husband referred to an incident on Sunday, 4 August 2007 in which he was watching television with the children and the wife came downstairs at 11:00pm that evening, lunged at him and said, “I’m going to fucking kill you”. At that point, he says:
“The children tackled Ms Parnell to the floor before she was able to get her hands on me. In the struggle between the children and Ms Parnell, she pushed the coffee table on top of me. Following this attack I told the children to get in the car and the three of us drove to my father’s home.”
The husband was cross-examined about this incident and I accept this husband’s version of how the events unfolded. On (omitted) 2007, the following day, the husband was informed by his son X that the mother had severely damaged the house. The father returned to inspect the home and extensive damage. The table which had the television set on it had been upended, the television set was broken on the floor, the lounge suite, dining tables and chairs were damaged, while in the kitchen pots and pans were laying on the floor, broken crockery was strewn across the kitchen floor and kitchen drawers were pulled out, with the contents laying on the floor. The dining room window was broken.
The husband says that whilst he was looking at the mess in the kitchen, he had a phone call from the wife in which he asked what she had done, told her she was mad and that she had completely destroyed the home, to which the wife replied, “I am on my way to your father’s now to burn it down”. He says he drove his car to his father’s house where he saw his wife sitting in the yard. He called the police and waited for an hour, after which they had not come and by that stage he drove back to the Property M property and started to clean up.
He later saw the wife return. She went upstairs, pushed a television off a table, upended the bookcases and damaged every other piece of furniture in the bedroom. The wife started throwing punches at the husband. He says that he physically restrained the wife on the floor and asked his son X to call the police. His wife struggled and he let her go and she left the house.
The police did attend at the Property M home and viewed the damage and listened to voicemails that the wife had left on the father’s phone. Those voicemails contained threats, including “You and your fucking sister are going to cop it, I have two carving knives wrapped in tea towels and I am going to carve you both up like chickens”.
The father says, and it is not challenged, that whilst he walked around the house looking at the damage, a police officer in charge of the matter opened up a tea towel on an armchair in the living room in which there were two knives wrapped in a tea towel and an empty packet of sleeping tablets next to the armchair.
As a result of all of this, an apprehended violence order was issued against the wife to protect the husband and, he says, his sister Ms L. That order was an interim apprehended violence order dated 8 August 2007,[4] After that incident, the husband was informed that the wife had been arrested, as she assaulted a police officer at (omitted) railway station. At that stage, the wife was allegedly found with sleeping pills and a large amount of cash in her possession and she was taken to the (omitted) Mental Health Unit for assessment.
[4] RJP30, page 105.
The father says at paragraph 105 of his material that the wife was sectioned “at the (omitted) Mental Health Unit” until “(omitted) 2007 after which she was admitted to (omitted) Hospital, for one week and then returned to the Property M property”.
The husband gave evidence that the wife discharged herself when she was being moved from (omitted) Mental Health Unit to (omitted) Hospital and that she did not return. The father alleges, and it is uncontested, that on (omitted) 2007 the wife attacked their son Y while he was reading in bed, causing a deep gash to the back of his neck. The husband says that he then removed the wife from the home, telling her that if she didn’t leave the house immediately, he was going to call the police.
In terms of the damage caused to the property by the wife, I accept the evidence as set out in the husband’s material at paragraph 101.[5]
[5] Affidavit of 22.10.14.
Between September 2007 (which is the date of separation) and March 2008 the wife called him around dinner time each evening and verbally abused him.
The husband said that the wife phoned him daily at his desk phone at work and abused him, and that on two separate occasions, apart from the incident referred to in paragraph 111 of his affidavit, he returned home from walking his dog to find the clothes that he had left on the washing line shredded and spread all over the yard. The father says that the wife came to the property at (omitted) to harass and abuse him. He recounted that on one occasion the wife cut up his washing that was hanging on the line. The husband says there was no reason for anybody else to come around and cut up his clothes, and in any event the family dog was loose in the yard and that the dog would have attacked a stranger. Because of this alarming sequence of events the husband moved out of that property and rented elsewhere. The father says he moved to seven different residences between 2007 and 2013 to avoid harassment by the wife. Each move incurred removal costs.
In 2010/2011 the husband suffered a stroke. The husband explained that his relationship with the wife was very stressful and that still when the phone rings at night he experiences tenseness in his body. This is because of the history he has endured with the wife ringing regularly at night to make abusive phone calls. The husband says he is having trouble sleeping for more than a few hours each evening and it takes him a long time to fall asleep. He has thought processes of the wife abusing him, and he is in fear that any minute, either the phone will ring in the middle of the night or there will be a bang on the door. It is for these reasons that he has requested that his current address not be revealed to the wife.
The husband explained that occasionally his hands tremble and he feels unsteady on his feet. He has had cancer which is currently in remission. He resumed drinking in around 2011 when he was drinking in excess of 10 cans of beer in the evening. That is four years after separation. He says the only medication he takes now is aspirin and Crestor for his cholesterol after his stroke he saw a psychologist and a social worker at Centrelink.
Overall, I accept the husband as an honest witness and I accept his account of their violent and troubled history during the marriage, as deposed to by him in his affidavit and under cross-examination. I accept that this conduct of the wife resulted in his parenting contributions and contributions to the welfare of the family being made much more difficult and onerous, and that this was due to the wife’s violent and unpredictable conduct. I also accept his evidence of the damage caused by the wife to the home and contents and to his vehicle.
In terms of the allegation that the husband poured boiling water on the wife, as I have said elsewhere, there is no evidence that the wife ever accused the husband of doing this deliberately at the time, and having heard the husband’s version of events. I accept that the incident occurred as deposed to by the husband and as explained in the witness box.
I have a strong impression that the wife has not retreated in any way from her vendetta against the husband, even now some 8 years later.

Ms L

The husband’s sister Ms L gave evidence. She is a special needs teacher of some 20 years and worked part-time. She has raised four children. She has been very involved in the care of her mother and father. Her evidence, which I accept, is that it was part of their family tradition that, since she was married, on Sundays she and her family would go round for dinner, save and except for times on and off throughout the year when they had other commitments, but their basic routine was to go there for dinner. She always had Fridays off and devoted that to her mother and father.
Ms L was very familiar with her mother’s and father’s health conditions. She was able to explain that her mother needed assistance in 2005 after her back operation. After the mother was diagnosed with cancer she became progressively worse and was hospitalised. Ms L gave evidence of going to the hospital when her mother had an operation and said that on that day the wife came with her. Her mother came out of recovery and was entirely in the care of doctors and specialists. Ms L denied that the wife, as alleged, gave any input into doctors or that she was in any way involved in her care. This included the diabetes, in respect of which Ms L said that her mother was completely self-sufficient and managing.
I noted the questioning required her to revisit, some painful memories of her mother and father’s illnesses. Ms L also recounted an incident in which she saw rosary beads and flowers which she recognised from her mother’s grave, being thrown around at her home. Ms L gave evidence of the wife going around the side of the house swearing at her husband. She saw the flowers strewn across the garden and the rosary beads and recognised those as coming from her mother’s grave, and that her mother’s grave had been desecrated. This was deeply distressing and offensive to Ms L.
As a witness, she was prepared to make concessions, and accepted that from time to time the wife called her parents “Mum and Dad.”
I accepted the evidence of Ms L. I found her to be an honest witness. She gave evidence very candidly. She had a good memory and recall. She knew the minute details of the care of her parents. She gave her testimony in a measured and straight forward manner.

Y is aged 24 years and is a (occupation omitted). He requested that his residential address not be made known to the applicant. He has a recollection of happy times in the household, but other occasions involved much yelling, mostly by his mother and on other occasions he observed his mother hitting his father. He has a recollection of an incident that occurred around 1998, describing an argument in which his mother was screaming. Y was directly in the vicinity and he observed his mother punch the father on the nose. That would have occurred when Y was around eight years old. He recalls his mother using obscene language and slapping his father on occasions. He also says, at paragraph 11 of his affidavit:
From as long as I can remember until my parents separated, they drank and my mother smoked marijuana every night. I have also observed my mother regularly taking tablets which I would take from where she stored them and hide them. I became aware that from about 2000 onwards that what my mother was smoking was marijuana.
He gave evidence that he saw his father typing up his mother’s assignments. Y confirms the incident in 2007 when the mother appeared late at night telling the husband and children that she was going to kill the husband and how they grabbed the mother as she was lunging at the husband. He also recounted an incident in which he and his friends were sitting in their bedroom and he heard his mother screaming. He locked the bedroom door and heard the sound of breaking glass. He observed from his bedroom window the mother going to his father’s motor vehicle and it would not start. He said he and his friends were alarmed and they climbed out of a window and went to a neighbour’s house seemingly for safety. He says later that day he saw holes in the wall, a television set smashed, wardrobe pushed to the floor, drawers open, paintings and photographs ripped from the walls and smashed, and chairs in the dining room broken. He questioned his father about what happened and his father replied that the mother went into a rage and took it out on the house.
He also recounted another incident just prior to separation in which, as the husband alleges, the wife grabbed Y by the back of the neck deeply scratching his neck with her fingernails. The husband intervened saying, “Leave the house immediately or I will call the police.”
Y deposed that after separation he did not have much to do with either his mother or his father. He has avoided speaking to his mother as she wanted him to choose her or his father and that he refused to do this. He can recall his mother saying to him, “Stay away from the father. I don’t want you to speak to him or have anything to do with him.”
Y had a very poor recollection of dates but a good recall of events. I accepted his evidence as truthful.

The approach to the division of property – global or asset by asset

In the matter of Wall & Wall [2002] FAMCA 257, a Full Court decision of Lindenmayer, Kay and Hannon JJ of 26 April 2002, the wife alleged that the husband’s father had died on 6 March 2000, leaving an estimated estate worth for probate purposes some $2.6 million:
It was not contested by the husband that, in round figures, he received, by way of inheritance from his father, money and property to the value of not less than $1.3 million, between the date of the trial Judge’s decision and the hearing of the appeal.”
It is clear therefore that this inheritance was received post-separation. The Full Court in allowing the appeal re-exercising the trial judge’s discretion and making orders more favourable to the respondent wife and making directions for written submissions as to costs held:
…it was appropriate for the Court, rather than recasting the pool of assets in light of the inheritance and then reassessing the relative contributions by the parties to that pool to deal with the inheritance only when considering section 75(2)…taking all of those matters into account the Court considered it appropriate to make a significantly greater adjustment in the respondent wife’s favour. As a result of the Court’s re-exercise of discretion being that the wife was to pay to the husband $8597 less than the trial Judge originally ordered her to pay to the husband (in order to retain the matrimonial home), and that she receive 75 per cent of the net proceeds of the sale of the boat, instead of 65 per cent originally ordered by the trial Judge.

The wife alleged that she alone paid for all of the costs associated with her son Z. A comparison and examination of the respective tax returns throughout the relationship completely disputes these assertions, as can be seen from exhibit H1 as compared to W3. I reject this allegation by the wife.
After separation the husband received half of his parents’ estate and his sibling Ms L inherited the other half. I have determined that this amount of money will be regarded as a financial resource of the husband in this marriage of 20 years.
The parties separated eight years ago.
Mr O’Sullivan, solicitor for the wife, suggests a payment amounting to 30% of the husband’s inheritance is warranted, given her contributions to the inheritance. I have already explained elsewhere my reasons for rejecting this allegation.
In Kessy & Kessy (1994) FLC 92-495 the Full Court comprising Baker, Finn and McCall JJ, a case where the wife’s mother had contributed considerable moneys towards the cost of improvements to the family home, the Full court stated in relation to inheritances:
In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
In this matter there is no evidence at all to suggest that it was not the intention husband’s father to benefit only his own children, the husband and his sister.
Further, on the balance of probabilities, I am satisfied that the wife did not have a good relationship with her in-laws, and I am satisfied that she made no contributions in any way went toward the husband receiving his inheritance.
In this matter, the wife seeks a payment, $106,830.00 from the inherited funds. In addition, the wife asks that she retain her own superannuation and all of the husbands, which totals another $104,000.00. The wife has already received a payment $25,000.00 which she seeks to retain, and she has received $7,000.00 at separation.
Mr Millar of Counsel for the husband submits that looking at the 75(2) factors, that the age and health and earning capacity do not warrant any adjustment. Generally I agree with this submission, save for what I have remarked upon in relation to the husband’s income being a little higher than the wife’s. I have had regard to the income in their financial statements. In my view, there could be a slight weighting in favour of the wife of a most modest amount, the husband will have investments from his inheritance which seem to account for his slightly higher income.
Under section 75(2)(o), any other facts, as per the authority in Mehmet, I note the husband has financially and non-financially assisted in raising his stepson, Z, for a period of approximately nine years. This factor favours the husband and would offset the wife’s slightly lower income earning capacity.
The four items represented in the asset pool of the inheritance, being the Queensland property, the (omitted) bank funds, the Audi, and the $25,000.00 total $609,718.00, which is 85% of the total property set out in the balance sheet $719,041.00 which does include the inheritance. The balance, therefore, that does not have its origins in the inheritance, as Mr Millar of Counsel put it, is $109,323.00.
Of the $109,323.00 not referable to the inheritance, the wife already has $80,600.00. That is, she has already received items 5 and 6 of the balance sheet, being her own money of $200.00 and household contents at $1,000.00 in addition to item 12, being superannuation standing in her own name with a value of $54,400.00. The wife has also received item 9 being the $25,000.00 payment advanced by the husband pursuant to Orders. That totals $80,600.00, which is 74% of the non-inherited property.
The wife has also retained the $7000.00 given to her just after separation as her share of $11,000.00. That amount is over and above the figures I have referred to. The husband is also left with the credit card bill from the marriage, which again is not included in the liabilities.
I note that the wife had occupation of the Property M residence from September 2007 to around May 2008. I do not consider this to be worthy of any adjustment.
In terms then of the most significant 75(2) factor, given the way in which I have approached this matter, obviously the financial resource of the husband compared to those of the wife, are significantly greater.
The submission of Mr Millar of Counsel is that, on weighing up those issues of the husband’s Kennon claim and his care of Z, as compared to a factor in favour of the wife being significantly less financial resources, that no further adjustment is required in terms of the Section 75(2) factors.
Mr O’Sullivan for the wife asks for an additional 30%.
On the application of the respondent, the respondents position is that as the assets currently stand, the wife has already received a just and equitable settlement. She has in her current possession $54,000.00 of superannuation. She has received $7,000.00 in the past by way of an interim distribution. She has $1,200.00 worth of miscellaneous furniture and cash. A further $25,000.00 was paid to the wife by an order of Judge Baumann out of the non-inheritance property pool. That means that the wife has received $87,200.00 of the non-inheritance asset pool of $109,323.00, which is 79.76% or, rounded up 80. Even deleting the $7,000.00 (which is not in the balance sheet either) the wife has still received $80,200.00 of the $109,323.00 which is 73.36%.
In my assessment, her entitlement before the section 75 (2) factors was 45%, which is $49,195.00. I am satisfied that on the pool (minus the inheritance) and before the husband’s inheritance, there no need to adjust the contributions findings, due to any section 75 (2) matter.
In the cases that have made an adjustment because of a late inheritance and when regarding it as a 75(2) factor any adjustment has been very modest. In Wall & Wall the adjustment was, on those particular circumstances, around 5%, which in this matter would translate to about $37,500.00. I am asked by Mr O’Sullivan to regard the $25,000.00 partial property payment as being payment of the wife’s costs. In family law matters the starting point of any costs is that each party pay their own.
In my view, this litigation has clearly been commenced in order to achieve, through various strategies, a result of achieving the largest portion of the post separation inheritance.
In this case it is difficult for me to accept that the $25,000.00 should be classed as anything other than an interim property distribution. The wife has had two solicitors and it has been in essence a very fine point that ought to have been conducted, however the wife has conducted the litigation on almost every front that she could consider. I note that the wife has attempted and given up on a Kennon argument, she has attempted and given up on an argument to do with the construction litigation alleging that the husband was reckless and that she should be given $110,000.00 for that. I note the comments of Judge Baumann in the interim orders that the wife’s case “was ready to go” at that point and that $25,000.00 would be sufficient to pay for Counsel and solicitor to appear at a three day hearing. As it turns out, there was no Counsel representing the wife, as her solicitor ran the case himself. Some $900.00 was spent on a report which was subsequently not relied upon. The matter went for 2 days not 3. It is not clear to me where the $25,000.00 was spent on this two day trial. Perhaps it has been paid in relation to previous fees already incurred by the time Judge Baumann made that order, noting that Judge Baumann said he was not making an order to cover retrospectively legal fees which had been incurred by the wife through this or other solicitors. In all of the circumstances I consider that the $25,000.00 already paid ought to be regarded as a partial property distribution.
Mr O’Sullivan for the wife submits that he is seeking 12.5% of the inheritance funds plus 50% of the non-inheritance assets, which are said to be $134,500.00. What is sought in the order is actually a figure greater than $134,500.00. The wife’s final orders seek that within 14 days the husband pay to the wife the sum of $106,830.00 (down from $192,500.00[10]) and in addition to that that a base amount equivalent to 100% of the husband’s super be paid to the wife and that she keep her own super which translates to the wife keeping $105,008.00 worth of superannuation. This is in addition to items 5 and 6 already in her possession, being $1,200.00 worth of contents and cash, the wife is to retain the $25,000.00 already given to her. This totals $238,038.00. The wife has in addition had the benefit of $7,000.00 as an earlier partial distribution.
[10] Amended Initiating Application filed 25.11.14.
The amount received by the wife if the court made the orders sought by the applicant would mean that the wife receives a total of $245,830.00 in all. That is out of an entire property pool of $721,441.00 (taking the wife’s figures) which is actually 34 % – 34.07 % of the entire property pool. In my view such a payment does not properly reflect the financial and non-financial contributions and the 75(2) factors which I have had regard. Even allowing for a comparison of their financial resources, it is an amount that I would consider to be unjust and inequitable. There is nothing about the wife’s contributions of 75(2) factors in my view that would warrant a payment of 34% of the remaining assets, which consist primarily of the husband’s inheritance, being paid to the wife.
Mr Millar submits that no further adjustment is required.
I note that if the parties keep what they have, the wife will have $54,400.00 in super, $25,000.00 already paid by order, $7,000.00 already distributed. She will retain $1,200.00 worth of contents and cash. The total is $87,600.00.
The husband will retain his $50,000.00 in super. He has had $1,000.00 partial distribution. He will retain his contents at $3,000.00, and Audi at $18,000.00. He will retain the funds in the (omitted) Bank of $141,718.00 and he will retain the Queensland property at $425,000.00 Of the non-inheritance pool he retains $50,000.00 plus his share of the $11,000.00 being $1,000.00 (after payment of the remaining legal costs for the bankruptcy). The husband has financial resources and assets of $584,718.00 which is derived directly from his own inheritance.
In Waters and Jurek (1995) FLC 92-635 Fogarty J noted the importance of s 75(2) and the emphasis on giving those factors real rather than token weight (see 85,871). His Honour said:
The connection between the s 75(3) factors and a just and equitable property order is more difficult since the criteria are expressed very broadly and are fundamentally prospective in their operation. The provision does not invite a process of social engineering.
Having considered the respective position of the assets and financial resources of the husband, as compared to those of the wife and whether or not, in light of all of the circumstances, there ought to be another adjustment, I am satisfied that a very minor adjustment is in order simply to acknowledge the different financial position of each of the parties. I do not accept the figure suggested by the solicitor for the wife as reflecting the proper acknowledgment of the contributions and 75(2) factors as referred to in this judgment. I consider that figure to be, like much of the wife’s case, grossly exaggerated.
On account of the husband’s inheritance and subsequent greater financial resources, I intend to make an adjustment in favour of the wife of 5% of the husband’s inheritance, which is sum of $37,500.00.
I have had submissions made to me that there is a sum of $2,400.00 still owed to the husband by the wife pursuant to an order in the State Court. The wife has given evidence that the order was set aside. I have no confidence that this is the truth. Mr O’Sullivan, for the wife, properly informs the Court that, as an officer of the Court, he has no evidence to validate the wife’s assertion that the order was set aside.
I intend to make an order that within 60 days the husband pay to the wife the sum of $37,500.00, less the sum of $2,400.00 owed by the wife to the husband. The amount to be paid is therefore $35,100.00.
I do not intend to make a splitting order. I have factored in the value of the husband’s superannuation in my assessment of the overall assets as can be seen in this judgment.

Step 4 – Just and Equitable Orders

In determining whether these amounts are just and equitable, in all of the circumstances I am satisfied that this figure does represent a just and equitable outcome. The wife retains her superannuation and has received an adjustment on account of the husband’s greater financial resources.
Given that I regard that the wife has made no contribution to the inheritance, the adjustment I make is an acknowledgement of the husband’s greater financial position, though at the same time noting that he is in that position from an inheritance which is due as the son of his late father. Given all of the circumstances, I am also satisfied that it is just and equitable that orders be made to finalise the financial arrangement between these two parties. I am satisfied that the orders that I am making are just and equitable.
I note that the applicant and respondent sought orders for costs. Having regard to this judgment, if either party is seeking costs, they are to file and serve submissions, including the basis of any costs order sought, and setting out the costs pursuant to the scale or any other order sought, together with a draft order, within 21 days of today’s date.
The respondent is to file and serve submissions in response, in similar terms within 21 days of being served. Unless either party wishes to be heard orally, I will make a decision on the papers.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date: 23 November 2015