PONDEL and LUMSDEN

[2019] FCWA 82

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PONDEL and LUMSDEN [2019] FCWA 82

CORAM: O'BRIEN J

HEARD: 8 APRIL 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 3869 of 2016

BETWEEN: MR PONDEL

Applicant

AND

MS LUMSDEN

Respondent

Catchwords:

PROPERTY - Where the wife sought an adjustment under the Kennon principles - Preliminary determination as to whether such an adjustment reasonably open if wife's evidence accepted at its highest - Discussion of approach in S & S [2003] FamCA 905 - Conclusion that proposed adjustment not reasonably open - Evidence in support of Kennon claim not relevant for other purposes struck out.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Farmer
Respondent	:	Mr Beckerling

Solicitors:

Applicant	:	Calverley Johnston
Respondent	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Dickons & Dickons (2012) 50 Fam LR 244

Farina & Lofts [2019] FamCA 27

Keating & Keating [2019] FamCAFC 46

Kennon & Kennon (1997) FLC 92-757

Maine & Maine [2016] FamCAFC 270

S & S [2003] FamCA 905

Welch & Abney (No 2) [2015] FamCA 1116

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The financial proceedings between [Mr Pondel] (“the husband”) and [Ms Lumsden] (“the wife”) are listed for trial today. The parenting proceedings in relation to the only child of the marriage, a daughter [T] born [in] 2012, have been finalised by the making of consent orders on 26 March 2018. Pursuant to those orders the parties have equal shared parental responsibility, and T lives with the wife and spends time with the husband.

2The matter presently requiring determination involves a consideration of that element of the wife’s claim for alteration of property interests which relies on an assertion that her contributions, both financially and as a parent, during the relationship and after separation were made more arduous by the husband’s conduct during the marriage and the consequences of that conduct. It is common ground between the parties that, absent that assertion, their respective contributions from the commencement of cohabitation to the date of trial were equal.

3The wife’s case in that regard has its origin in the principles articulated by the Full Court in Kennon & Kennon.[1] It is convenient to refer to that aspect of the wife’s case, as counsel for each party has done, as the “Kennon claim”.

[1](1997) FLC 92-757.

4Relevantly for present purposes, the majority in Kennon stated (emphasis added):

“put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties respective contributions within s 79…”[2]

[2] Ibid, 84,294.

5Earlier in the judgment, the Full Court had made it clear that while its discussion of the issue referred exclusively to domestic violence because of the facts of the particular case, the principles articulated were not intended to be confined to that issue, domestic violence not being an exclusive category but rather the most obvious example of a wider and more general category of conduct which may be relevant within s 79.

6The Full Court went on to consider what it described as the “floodgates” argument – holding that the principles articulated should only apply to “exceptional cases”, lest such claims become common coinage in property cases and be used inappropriately, returning the court more broadly to considerations of fault and misconduct in property cases. Referring to the “relatively narrow band of cases” to which the considerations would apply, the court said:

“to be relevant it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).”[3]

[3] Ibid.

7In S & S,[4] the Full Court considered the approach to be taken in a case where evidence is sought to be adduced in support of a Kennon claim. The Full Court said:

“While it may be difficult in some cases to determine at the outset whether a claim under section 79 related to domestic violence is likely to be successful, generally a determination should be made at the outset on the evidence filed by the party relying on it.”

[4] [2003] FamCA 905.

8As the Full Court said in Kennon:

“ … The question raised in this case was whether and if so to what extent domestic violence was relevant in the exercise of the discretion under s 79 of the Family Law Act. If it is relevant, that should be clearly acknowledged. If it is not, then a disservice is done by attempting to apply the section to circumstances which are not within its ambit.”[5]

[5] Kennon & Kennon (1997) FLC 92-757 [84,291].

9In applying S & S in the case of Welch & Abney (No 2) when considering objections to evidence adduced in support of a Kennon claim, Justice Austin observed that

“to determine the admissibility of the evidence-in-chief it was necessary to contemplate the prospective validity of the Kennon argument on the strength of the wife’s own evidence. If, when accepted at its highest, it could not support a Kennon submission then it was futile to receive it.”[6]

[6] [2015] FamCA 1116, [18].

10The question squarely raised in the present case is triggered by the husband’s objections on the ground of irrelevance to the evidence sought to be adduced by the wife in support of her Kennon claim.

11It is conceded that much but not all of the evidence in question can only be relevant if adduced in relation to a Kennon claim; if, therefore, the Court determines at the outset that the wife’s evidence even if accepted does not lead to a conclusion that the claim is likely to be successful, the evidence is accordingly irrelevant and inadmissible. That was the approach taken by Justice Carew in her Honour’s recent first instance decision in Farina & Lofts.[7]

[7] [2019] FamCA 27.

12The proper approach to a Kennon claim was considered very recently by the Full Court in the matter of Keating & Keating, in which judgment was delivered on 21 March 2019.[8]

[8] [2019] FamCAFC 46.

13Justice Austin, who was the trial judge in Welch,[9] while allowing the appeal in a judgment separate to that of the majority, emphasised that the Kennon guidelines are reserved for a relatively narrow band of cases. His Honour agreed with the majority that there is no absolute requirement that evidence of family violence or its effects be corroborated, although in circumstances where the evidence is otherwise balanced corroboration may be persuasive. His Honour declined to join with the majority (Justices Ainslie-Wallace and Ryan) in any further analysis of S & S, the matter not having been fully argued.

[9] [2015] FamCA 1116.

14Nevertheless, the majority judgment is instructive in a number of respects.

15Firstly, the majority noted that the reference in Kennon to violence having occurred “during the marriage” should not be interpreted as “laying down a hard and fast rule that post separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant”.[10] I respectfully agree. Bearing in mind that the court’s task is to consider and assess in a holistic way the nature, form and extent of all the contributions of the parties over the duration of their relationship and including contributions made post separation,[11] it cannot be that an otherwise properly grounded Kennon claim would fail simply by virtue of the offending conduct occurred after separation.

[10] Ibid at [33].

[11] Dickons & Dickons (2012) 50 Fam LR 244.

16The majority referred also to the necessity, established in Kennon and confirmed in S & S, for the evidence to show that the conduct in question had a “discernible impact” on the contributions of the relevant party. Their Honours regarded as unfortunate the use in S & S of the word “quantify” in relation to the consideration of that discernible impact, as tending to “elevate the need for an evidentiary nexus or discernible impact between the conduct complained of and its effect on the parties ability to make relevant contributions, requiring expert or actuarial evidence as to the effect of the violence.”[12]

[12] Keating & Keating [2019] FamCAFC 46, [38].

17Their Honours nevertheless confirmed the need for there to be an evidentiary nexus between the conduct complained of and the capacity and/or effort expended to make relevant contributions, accepting that in the absence of express evidence about the effect of the violence on the victim spouse’s contributions the court would face significant difficulties in drawing inferences which would establish the required nexus.[13]

[13] Ibid, [39].

18Having made those observations their Honours did not express a final view on the matters discussed in the absence of adequate argument.

19In submissions today counsel for the wife referred to observations made by the Full Court in Maine & Maine.[14] Those observations were, with respect, specific to the demonstrable error in the primary judgment there under consideration, rather than being any articulation of a generally applicable principle.

The present case

[14] [2016] FamCAFC 270, [49].

20I turn to consider whether, were the wife’s evidence to be accepted at its highest, it could properly support a submission that the conduct complained of would lead to an assessment of the contributions of the parties different from the assessment which would result had the conduct not occurred, with a reasonable likelihood of that submission being successful.

21In doing so in my view I must consider:

(a)whether the conduct complained of is of a nature which could support a Kennon claim;

(b)whether the wife’s evidence if accepted would establish the relevant nexus between the conduct complained of, and the nature form and extent of the wife’s contributions;

(c)whether, if that nexus was established, the evidence if accepted would lead to a conclusion that those contributions were made more onerous by virtue of the conduct complained of; and

(d)if so, whether the present case can properly be characterised as exceptional, such as to fall into the relatively narrow band of cases to which the consideration of such conduct in the assessment of contributions would apply.

The wife’s evidence at its highest

22The conduct of the husband asserted by the wife to be relevant to her Kennon claim is summarised in her Papers for the Judge, filed on 18 March 2019, and in the written submissions tendered by counsel in the course of argument.

23She says that the husband carried on two separate contemporaneous extramarital affairs between 2011 and 2015, travelling away from Perth to maintain those affairs relatively frequently, including after the birth of T. She says that T was a difficult baby, and that she cared for her during the husband’s absences. That said, counsel for the wife also submitted that the wife was exclusively responsible for T’s care regardless of whether or not the husband was present.

24The wife refers further to lies told by the husband both to her and to the two women with whom he was having affairs, saying that he lied to the two women by saying that T was terminally ill, that the wife was not coping and was suffering from depression and anxiety leading to an admission to [Hospital A] for serious ongoing mental health problems, and that the reason for the parties’ first separation 2013 was the wife’s infidelity.

25The wife says that she was profoundly affected by the husband’s conduct. She says that she suffered chest pain and a visible tremor in the weeks after November 2015 when she discovered that the husband’s affair with one woman, which she had been assured had ended, had not. She says that she suffered insomnia, which has persisted, stress and an affected memory. She says further that she suffered embarrassment in the workplace, and anxiety about the perceptions of colleagues in circumstances where she and the husband are both [medical professionals] often moving in the same circles. She refers further to ongoing mistrust of the husband and of her own judgement, anxiety in co-parenting and a persistent fear at the prospect of T finding out about the husband’s lies about her health, and the child’s reaction if she does.

26She relies also on two affidavits sworn by the psychologist [Dr W], who deposes that the wife came to see him for advice “for the purpose of dealing with her child and with her ex-partner”, focusing around what is best for T and how to achieve that in a complex situation, and seeking assistance to put in place appropriate strategies.

27In his first report dated 20 November 2017, Dr W said that he had been providing treatment and advice to the wife in regard to managing the well-being of T in the Family Court situation. When asked for his view as to the wife’s confidence in her ability to deal with the husband, he described her as appearing to be in a state of learned helplessness in dealing with him, while describing her as an intelligent and competent woman. He went on to say that “even in a topic related to her professional expertise of medicine” he found that the wife “no longer knows what to do and seems to doubt herself”, not because of any failure in knowledge but a fear of repercussions should she engage in any particular course of action. He described her as quite confused in how to deal with everyday situations with the husband.

28That said, he emphasised that she had not come to see him for mental health concerns, and that she had told him she had some counselling for personal issues. She had come to see him solely for the purpose of dealing with T and with the husband. He described her as a very competent and capable woman who expressed appropriate levels of concern around the needs of T, but that when it came to dealing with the husband she was quite confused in what to do, which generated some anxiety in a person who he would not otherwise describe as anxious.

29He expressed the opinion that “this affects her self-esteem, her confidence and ability to deal with issues. In other areas of her life [he] found no evidence of anxiety or concern.” He had spent six hours with her to the time of that report, and described her as being “one of the more balanced and considered parents [he had] assessed within [his] career of court work.”

30In his second report dated 8 October 2018, Dr W said that the wife had attended his office for professional advice in regard to the safety and well-being of T in regard to certain unusual behaviour shown by the husband, including in particular stories made up by him about T being terminally ill. He confirmed that he had first seen the wife on 18 January 2016 and that his role “was not as a therapist, but as a consultant to help understand potential risk so as to manage her anxiety about the well-being of [T] and her fears based on the husband’s behaviour.” He had seen her for a total of eight appointments between January 2016 and 2018, roughly every three months.

31She described considerable anxiety around the husband’s behaviour and lies, and was anxious as to parenting in those circumstances. She had been caused significant social embarrassment amongst professional colleagues who had believed the husband’s lies and rallied around him because of what he described as his terrible circumstances. She was concerned about the husband’s emotional capacity, and embarrassed at finding it necessary to undertake testing for sexually transmitted diseases when she discovered his affairs. She found the husband’s lies about T distressing, and they made her anxious about his future behaviour.

32Dr W summarised his observations as follows:

“the net total of these types of factors meant that [the wife] who is a competent professional in her working life presented as self doubting, anxious and fearful. It also meant that as a parent she could not trust her partner as he had been lying to her and others. I did not fully assess her for depression, but she certainly presented with a mix of anxiety, low self-esteem, and mild depressive features. This in turn would impact her capacity to be a vibrant and happy parent.”

33Dr W hoped that his overview would highlight some of the depth of feeling which she would have experienced.

34In a further report dated 21 February 2019, in response to questions from the wife’s lawyers, Dr W confirmed that he had seen the wife in January, August, September and November 2016, in April, May and October 2017, and in February and November 2018. Apart from matters already summarised, he said that the husband’s behaviour had impacted on her ability to “feel as a competent capable and valued person despite the fact that she is a high functioning [medical professional]”. He went on to say that the wife’s “anxiety and fearfulness is not general life anxiety and fearfulness but anxiety and fearfulness in regards to the parenting capacity and the mental well-being of [the husband]. The low self-esteem is a product of the situation where she did not feel valued and because of the problems associated in this case with the allegations being made by [the husband].”

35The wife presented as someone who was quite capable of making decisions. She presented as a pleasant natured woman who seemed somewhat confused by the situation with the husband. He did not see her as suffering from a mental illness, but saw her presentation as being a reaction to a situation and in the circumstances in proportion to the events of her life. He considered her concerns about the behaviour of the husband to be reality based.

36The wife relies also on affidavit of her general practitioner, Dr A. Dr A has been the wife’s general practitioner since July 2012. In her affidavit she describes the wife as an articulate, sensible person who presented for relevant health issues that needed to be reviewed or addressed. She had attended on another GP at Dr A’s practice on eight occasions between 30 July 2012 and 5 November 2013, but on none of those occasions did the records indicate any discussion about emotional and/or mental health issues.

37Dr A says that prior to 5 November 2013 she did not have any concerns regarding the wife’s mental health or resilience based on her interactions with her.

38She described two occasions when she had issued the wife with a medical certificate in relation to not being able to work as a result of anxiety and stress related issues. On one occasion that was for one week in November 2013 and on the other it was for two weeks in November 2015. The decision to issue those certificates was on each occasion based on discussions as to the wife’s level of stress related to events in her life at that time, and a joint decision as to appropriate time off work that would be required. Dr A was concerned at the relevant times that given the level of anxiety and stress the wife was experiencing on those occasions she may have difficulty thinking clearly enough to work, noting that she also needed some time for herself to process events.

39She expressed the view that the wife’s presentation in November 2015 to now in relation to her emotional and mental health is consistent and referrable to what she alleges she has been subjected to by the husband since 2013. She was not aware of any other issue which may have led to such difficulties.

40She described consulting with the wife on 11 occasions between 2013 and December 2018 in relation to her emotional and/or mental health. In November 2013 in the context of an initial separation the wife was anxious and stressed, and wanting the husband to participate in counselling with her. In August 2014 she reported having been back together with the husband for three months after a period of six months separation, having been to counselling. In November 2015, having discovered the husband’s affairs, she was feeling very stressed and was suffering from decreased appetite and poor sleep. On a further consultation a week or so later, she had found out about the husband’s lies about T’s health and was very stressed.

41In February 2016 the wife reported that work was going well, and that she had good engagement with a psychologist which she found to be a good debriefing environment. She was noted as looking much brighter and that her anxiety had resolved since the husband had moved out. In August 2016 she reported a continuing good engagement with her psychologist, with the main issues being financial settlement issues and child custody matters. She was noted as remaining concerned about all of those issues, with the associated stress continuing but reported no concerns regarding work, and no concerns regarding her engagement with T.

42In March 2017 the wife reported that T was going well at school, and that she herself had good support from family and friends. There was a discussion regarding her mental health in relation to legal proceedings, but the report contains no further detail.

43In October 2017 she reported life as being busy and stressful. She was largely a full-time carer of T and was working three days per week. There were ongoing legal processes happening, she had a new home in [Suburb A], and found her sleep variable as she had lots of work for court as well as life, which impacted on the quantity and quality of her sleep.

44In January 2018 she reported challenging times associated with the legal proceedings, but described herself as being well supported by family and friends. Mood wise, she was doing well, but was just very busy.

45In July 2018 she reported that the parenting proceedings were resolved and that adjusting the needed childcare arrangements and co-parenting remained challenging.

46On Christmas Eve 2018 she reported that the financial proceedings were to proceed to trial today. She described the parenting arrangements, and changes which the husband made to them. She reported a dispute with the husband about T’s attendance at [School A]. She described ongoing challenges in her relationship with the husband and co-parenting, including challenges with the husband’s current partner, and was frustrated by their behaviours and how they treat T. She said that she was struggling to wind down, and had some insomnia due to stress.

47Elsewhere in her report, Dr A described various occasions where the wife’s depression, anxiety and stress score on a standard test were at the upper limit of normal, or moderate, and noted difficulties with sleep and stress relating to co-parenting.

48She expressed the opinion that the emotional and mental health issues experienced by the wife were directly linked to her relationship breakdown including the circumstances surrounding it, and the subsequent challenges involved in co-parenting. In terms of functioning as a parent, she described her impression as being that the wife had applied herself admirably to the task of both parenting and trying to maintain an appropriate relationship to co-parenting, while noting that there were challenges with that which impacted on her own mental health.

49She described providing supportive counselling and referral to a psychologist Dr S and prescriptions for occasional medication to use for insomnia. She described herself as hopeful the wife would continue to make positive progress, while noting the potential for ongoing challenges of co-parenting to impact on her.

50Dr S, the psychologist to whom the wife was referred, has not given evidence.

51Finally, the wife relies also on the evidence contained in an affidavit sworn by her mother. For present purposes while much of that evidence is extensively related to the Kennon claim it does not require further analysis.

Is the husband’s conduct of a nature which could support a Kennon claim?

52As already noted, the authorities make it clear that family violence is not the only form of abhorrent behaviour which can support a Kennon claim if the relevant nexus between that behaviour and the impact on contributions by the victim of it is established by the evidence. Sensibly, counsel for the husband conceded as much.

53Counsel for the husband argued that the husband’s behaviour in conducting various affairs during the course of the marriage, concealing those affairs from the wife and actively deceiving her as to the purpose of various trips which he took cannot of itself support a Kennon claim, regardless of the evidence.

54She noted that the wife’s argument in that regard was to a significant degree directed to the proposition that the husband travelled away to conduct his affairs, leaving her exclusively responsible for the care of T, at a time when T was a difficult baby. Quite apart from the submission by counsel for the wife that the husband made no parenting contributions even when he was home at the relevant time, it may fairly be observed that the burden on the wife in that regard would have been very similar simply by virtue of the proper demands of the husband’s employment, and identical had he travelled for genuine work purposes.

55That said, the submissions on behalf of the wife were not limited to that asserted direct effect on the demands of the wife’s parenting contributions. It was submitted that the stress and anxiety caused to the wife by the husband’s affairs and the deceptions surrounding them of themselves made her parenting contributions significantly more onerous.

56While the wife’s evidence accepted at its highest would support a finding that she was distressed by the husband’s conduct of affairs and his lies in relation to them, and that there were consequences of that distress which she sought to address with appropriate assistance, in my view, it stretches the relevant principles too far to suggest that infidelity per se, and the deceptions which almost inevitably accompany it, can constitute behaviour which would properly ground a Kennon claim.

57To do so would, as observed by Austin J in Welch,[15] albeit in a different context, potentially return family law litigation to its pre-Family Law Act character and form; that in turn would be contrary to the principles of the legislation. It must be borne in mind also that the concept central to a Kennon claim is the proposition that the assessment of contributions must favour the victim by virtue of his or her contributions having been made more onerous by the relevant conduct; a Kennon claim is not grounded in an analysis of any future ongoing impact of the behaviour on the victim. That is, in the appropriate case, and when supported by evidence, a matter which may factor into the consideration of s 79(4)(e).[16]

[15] [2015] FamCA 1116.

[16] Family Law Act 1975 (Cth).

58The same cannot, however, in my view be said about the husband’s behaviour in promulgating lies about T’s health, the wife’s mental health, and allegations that the breakdown of the marriage arose because of infidelity on her part rather than his. That is particularly so when those lies were promulgated amongst professional colleagues and friends in circumstances where the potential impact of them on the wife was entirely predictable. Whether or not the evidence would support a conclusion that the behaviour coerced or controlled the wife or caused her to be fearful, such as to meet the statutory definition of family violence, the behaviour itself, most particularly in relation to the lies about T being terminally ill and the wife not coping, is in my view of an abhorrent and cruel nature, such as to be capable of grounding a Kennon claim if the other elements of such a claim are properly met.

Whether the wife’s evidence if accepted would establish the relevant nexus between the conduct complained of, and the nature form and extent of the wife’s contributions

59In this context, I am required to consider both whether the nexus between the husband’s conduct and its asserted impact on the wife is established if the wife’s evidence is taken at its highest, and whether the nexus between that impact and the wife’s contributions is similarly established.

60The first element is readily dealt with. The wife’s own evidence, supported by that of Dr W and Dr A, is that the husband’s conduct at the very least contributed significantly to her noted anxiety and stress. Specifically, Dr A noted no such symptoms on the part of the wife prior to her discovery of the husband’s conduct.

61The second element is also readily dealt with. As for present purposes I must take the wife’s evidence at its highest, for those purposes it must be accepted that she genuinely suffered from the anxiety, stress and self-doubt referred to in the reports and in her own evidence. The evidence of Dr W in particular could support a conclusion that the wife’s contributions as a parent were affected by that anxiety, stress and self-doubt. The wife’s own evidence, and to a degree that of Dr A, could support a conclusion that her ongoing financial contributions since discovery of the husband’s conduct were also affected.

62That, of course, only takes the Kennon argument so far.

Whether, if that nexus was established, the evidence if accepted would lead to a conclusion that those contributions were made more onerous by virtue of the conduct complained of.

63Again, that question can be answered in the affirmative. The evidence of the wife and that of Dr W would, if accepted, support a conclusion that the wife’s contributions as a parent were made more difficult as a result of the impact on her of the husband’s conduct. Similarly, the evidence of Dr A and the wife’s own evidence would, if accepted, support a conclusion that her financial contributions were made more difficult as a result of the impact on her of the husband’s conduct, given the anxiety she experienced as a result of his lies about T and about her having been promulgated in the workplace.

64The difference if any between contributions being made more “difficult” by virtue of a particular circumstances, or those same contributions being made more “onerous” as described in Kennon is at best a question of degree. It is unnecessary in the present case to consider that possible difference in the abstract in any detail, given that I must now turn to consider the associated issue of whether the present case can, if the wife’s evidence is accepted at its highest, properly be characterised as falling into the relatively narrow band of cases to which the consideration of such conduct in the assessment of contributions would apply, whether by a conclusion that the wife’s contributions were made significantly more onerous, or by some other feature leading to the case properly being described as exceptional. Irrespective of the slightly different language used in Kennon, S & S and Keating, it remains clear that while in very many, perhaps even the vast majority of cases, some form of conduct on the part of one spouse will make the contributions of the other spouse more onerous in some way, it is only in a very limited number of cases that the establishment of that fact will impact on an assessment of contributions.

65So too counsel for the wife, in my view sensibly, acknowledged that “significant impact” and “discernible impact” are, in context, essentially interchangeable terms, acknowledging also that what must be demonstrated in a Kennon claim is an impact of the behaviour in question on the contributions of the party making the claim, such as to make those contributions significantly more arduous.

Whether the present case can properly be characterised as exceptional, such as to fall into the relatively narrow band of cases to which the consideration of such conduct in the assessment of contributions would apply.

66Counsel for the husband acknowledged that the behaviour of the husband complained of was, to use her word, “poor”. I would go further than that, as is clear from observations already made. The husband’s behaviour was reprehensible.

67Counsel for the husband also properly conceded that the wife would have been distressed and upset by that behaviour. What she did not concede was that the behaviour had an adverse impact on the wife beyond that understandable distress and upset, nor that her contributions were made demonstrably more onerous as a result.

68Counsel noted the wife’s own evidence that T was a difficult baby, and that accordingly the wife’s exclusive responsibility for parental duties while T was very young would have been onerous irrespective of the conduct complained of. She noted further the limited time off work taken by the wife, and the specific circumstances in which it was taken. She referred in detail to the observations of the wife’s general practitioner already referred to earlier in these reasons, including not only the various positive observations made but also reference to other stressors including the legal proceedings themselves, moving house and the like. She referred specifically to the various scores noted in the depression, anxiety and stress tests, and the reversion within a short time after separation to scores in a normal range, with a suggestion that the increase in December 2018 to scores in a moderate range were related to the stresses of the litigation itself.

69Counsel for the husband also referred to the wife’s own evidence as to her personal choice to work in the public health sector rather than the private sector, in disputing any contention that the wife’s employment options in the private sector are inhibited as a result of the husband’s conduct, and her fears associated with it. In her trial affidavit, the wife emphasises that she chooses to work in the public sector as it has more predictable hours and on-call requirements. She refers to private [medical professionals] often working late into the night to accommodate [other medical professionals], and the lack of availability of relief in those circumstances if for example her parenting duties meant that she could not attend at short notice. She refers further to difficulties associated with taking leave and concludes by saying that she “does not feel this type of work is conducive to motherhood or being a single parent.” She refers further to the lack of flexibility in working privately as a medical professional. She says further that she tried to find work in the private sector in late 2016, and worked in it from February to April 2017, but found that it did not reliably allow her to earn enough money in predictable lists to pay her expenses. She said that she instead opted to increase her public hours. All of those statements were made in response to a proposition by the husband that the wife had always been reluctant to work in the private sector and that she could have more lucrative earning potential and flexibility if she did. The wife disputed that contention.

70It was only against that background that the wife went on to add that she also found working in the private sector unpleasant because of the rumours surrounding the husband.

71By reference to the submissions made by counsel for the husband as to the detailed chronology, and in particular the reconciliation of the parties after at least some of the behaviour complained of, counsel for the wife submitted that the relevant impact of the behaviour must appropriately be regarded as being cumulative, rather than being analysed in effect incident by incident. I accept that is an approach open to be taken, and is an appropriate approach in the circumstances of this case.

72Counsel for the wife referred also to Dr A’s reports in detailing the account of the stress and some physical symptoms experienced by the wife. That said, he acknowledged that there were other components of Dr A’s report that indicated that some effects were relatively short-term, and that positive progress was made. He acknowledged also that the report identified other stressors not directly attributable to the husband’s conduct.

73He submitted that co-parenting must be based on trust, that as a result of the husband’s conduct the wife has no trust in him, and that accordingly her efforts at co-parenting and therefore her contributions as a parent have been made more onerous. With all due respect to counsel, an element of mistrust, or even a very significant degree of absence of trust, is a condition not at all uncommon in the parties whose cases come before this court. Were an absence of trust, with an associated impact on the effort required to co-parent, to be recognised other than in extreme cases as a factor properly to impact on the assessment of the contributions of parties in the course of the alteration of their property interests, the concerns expressed by the Full Court in Kennon as to the opening of floodgates, and the more recent concerns expressed by Justices Austin and Carew in the first instance decisions already referred to, would become a reality.

74While I accept that the husband’s behaviour has had a personal effect on the wife, and indeed that is conceded, and I accept further that her personal well-being can impact on her contributions as a parent, and require greater efforts of will on her part to discharge her parenting duties in the commendable manner which she has, I am unable to conclude that even taking the wife’s evidence at its highest her contributions as a parent have been made significantly more onerous as a result of the husband’s conduct, to the extent necessary to include this matter in the relatively narrow band of cases in which such conduct should impact an assessment of those contributions.

75Similarly, in my view the wife’s evidence taken at its highest does not support a conclusion that the distress and embarrassment she has suffered as a result of the husband’s conduct has made her financial contributions more onerous. Apart from the two separate periods of one week and two weeks respectively where she was certified unfit for work, she has continued to exercise her earning capacity earning a very significant income in the sector which, on her evidence, best suits her both personally and in the accommodation of her parenting commitments. The two short periods of work referred to are insufficient, in my view, to ground a conclusion that their impact was, in context, “significant”. Again, and without being unsympathetic to the wife, it is far from uncommon for parties to a marriage breakdown to have to take some time off work in the aftermath of a separation with the very understandable stresses that are inevitably involved.

76I conclude for those reasons that the submission of the wife that what would otherwise be the equal contributions of the parties should be assessed in her favour in the proportions of 55 percent to 45 percent by reference to the Kennon argument will not succeed, even on her evidence at its highest.

77I conclude accordingly, as it was common ground between the parties, that their respective contributions are to be assessed as equal.

78As foreshadowed this morning, I propose to now adjourn for the balance of the afternoon to afford counsel the opportunity to review not only the evidence upon which each would seek to rely in view of my ruling, but also whether remaining disputes as to the admissibility of certain evidence might now be resolved. I will rule on any unresolved disputes as to inadmissibility on the trial resuming tomorrow morning.

79I would encourage the parties and their advisers also to take the opportunity to renew their efforts to settle the proceedings on a commercial basis, bearing in mind not only the ruling I have made this afternoon but the observations which I made at the invitation of counsel this morning. It is to the great credit of the parties and those advising them that a settlement was able to be reached in relation to parenting orders notwithstanding the history of the matter; while I accept that the legitimate dispute between the parties as to the availability or otherwise of a Kennon claim might have made the settlement of the financial case seem unattainable, that dispute having been determined the parties should, in my view, be capable of resolving those matters which remain in dispute without the further expense, stress and potential damage of the trial itself.

These reasons are the reasons for decision I delivered on 8 April 2019, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

12 APRIL 2019